Electing the Next ICC Prosecutor: Can International Standards be a Source of Inspiration?

With the publication of the vacancy announcement for the position of the next International Criminal Court (ICC) Prosecutor earlier this month, it seems appropriate to review the existing international standards that govern the appointment process of chief prosecutors. Although these standards were developed for national contexts, they could provide guidance to the Committee on the Election of the Prosecutor and the panel of experts on how to perform their tasks, as well as the Assembly of States Parties (ASP) when making its final decision in December 2020.

Numerous international and regional bodies, such as the United Nations [pdf], the Inter-American Commission on Human Rights (IACHR) [pdf], the European Commission, and the Council of Europe, have recently underlined the need to guarantee the independence of prosecutors and their offices, which are considered a fundamental component of the administration of justice. Independent prosecutors, who are willing to investigate and take legal action regardless of the status or power suspects may have in society, play a key role in strengthening the rule of law.

The structure, function, and role of prosecution services varies from one state to another. However, common features and values characterize the professional status and the ethical standards governing the conduct of prosecutors, and key among them is that they are expected to carry out their functions fairly and impartially.

The chief prosecutor at the national level is a leadership role, which is often responsible for the management of the entire office, including all investigations and prosecutions. Therefore, numerous international bodies increasingly consider a merit-based, transparent, and accountable appointment process for a chief prosecutor an important component of the independence of the prosecutor’s office as a whole. Political appointment should be avoided because it jeopardizes the independence of chief prosecutors, making them more vulnerable to potential external pressures, jeopardizing the appearance of their independence, and consequentially undermining the confidence that citizens place in their ability to act in the best public interest.

An appointment process in accordance with international standards requires two sets of criteria be met. The first set is related to the qualifications of the candidates, and the second set addresses the process to be followed for the selection and the appointment of a chief prosecutor. These standards and how the selection process for the next ICC prosecutor complies with them are examined in more detail below.

Qualifications of the Candidates

International standards regarding the competencies and skills that chief prosecutors should possess remain quite general: a chief prosecutor must demonstrate suitable expertise (ability) and must be of high reputation (integrity). States should establish objective criteria to properly assess both personal merit and professional qualifications. In addition, the selection criteria should exclude any kind of discrimination or selection based on prejudice. The IACHR has particularly emphasized the need to ensure that women are adequately represented in public office.

The vacancy announcement for the position of ICC Prosecutor has made a remarkable attempt to define objective criteria regarding the skill set that candidates must fulfill. Candidates must possess the qualifications required for appointment to the highest judicial offices in their countries and in-depth knowledge of national or international criminal law and procedure, international humanitarian law, and public international law. They must also have at least 15 years of experience in criminal law practice, in particular in the investigation and prosecution of serious crimes.

Furthermore, candidates must be of high moral character and show impeccable personal and professional integrity. As (sexual) harassment and misbehavior at work has come more into the public spotlight and a point of attention all around the world, the committee and panel of experts involved in the selection process of the next ICC Prosecutor will have the difficult task to evaluate whether candidates had irreproachable conduct in their previous jobs. Criminal records may be a trustworthy source of information (although it is not required from candidates to produce such a document) but will not be sufficient. The selection committee and expert panel could ask candidates about any criminal, administrative, or disciplinary proceedings they have been the focus of, or to submit a declaration of honor in which they state that they have never been the subject of a procedure of any kind because of inappropriate behavior at work. The letters of reference required of candidates (from a supervisor, a peer, and a supervisee) could also give relevant indication.

Unfortunately, the terms of reference [pdf] published by the Bureau of the ASP for the election of the prosecutor do not specify explicitly that the shortlist of candidates the selection committee establishes must be gender-balanced. However, the same terms of reference underline that the Committee “shall have due regard to gender and geographical balance.” A meaningful application of this guideline should require the committee to have an equal number of female candidates as male candidates at the time the committee and expert panel composes the longlist, as well as the shortlist to be later established by the committee.

Selection and Appointment Processes

The selection process of chief prosecutors is crucial. The assessment of the professional qualifications and the merits of candidates should ensure appropriate safeguards in terms of independence and checks and balances. The method used for the selection of a chief prosecutor should gain the confidence of the public and the respect of the judiciary and legal professionals. Professional assessment, transparency, and publicity are key factors that can help to mitigate the risk of undue influence, favoritism, or nepotism. Four lessons can be learned from international standards in this respect.

First, international standards underline the need for widely publicized announcements that clearly set out the requirements that candidates should meet and the procedure that should be followed. This will allow any person who believes they fulfil the criteria the opportunity to apply.

Secondly, professionals with relevant and non-political expertise should be involved in the selection process in order to avoid political appointments. This could imply the creation of a commission of appointment comprised of persons with suitable expertise, such as representatives of the legal community or civil society who are respected by the public and trusted by governments.

Thirdly, the IACHR has called for the organization of public hearings or interviews where the public, civil society, and other interested parties will have an opportunity to raise questions or express concerns about candidates. This scrutiny by the public could significantly reduce the degree of discretion authorities have, and can contribute to holding the authorities responsible for the appointment of the chief prosecutor accountable for their actions. Similarly, the list of final candidates should be made public, which is a prerequisite for civil society engagement.

Finally, the principle of good administration of justice promoted by the European Court for Human Rights implies that authorities provide the reasoning behind their decisions: public control of the institutions can only be exercised through reasoned decisions.

Some of these international standards are reflected in the selection process of the ICC prosecutor as elaborated in the terms of reference, but some additional efforts are needed to make them effective and fully aligned with the international standards.

The Bureau of the ASP made the vacancy announcement public, defining both the qualifications and the selection process. However, in the context of a worldwide recruitment process, the Bureau should make sure that the vacancy announcement has properly reached the largest number of possible candidates. Assistance could be sought from state parties, asking them to distribute the job description among all national prosecutors, or also from associations of prosecutors or bar associations willing to disseminate the announcement.

The appointment of a panel of experts is also a step in the right direction as it meets the international recommendation of having external and skilled experts involved in the recruitment process of the head of the prosecution office. As already underlined, however, the role of experts will be meaningful only if the committee listens to and takes on their recommendations.

Paragraph 28 of the terms of reference lays the foundation for the organization of public hearings. It refers to the holding of “hearings for shortlisted candidates with States Parties and civil society.” Therefore, due consideration should be given by the Bureau to the organization of public hearings of shortlisted candidates, including via video link. Such hearings would serve to reinforce the Bureau’s commitment to transparency and build confidence in the process.

No requirements have been made so far in terms of providing reasons for decisions that the committee and the panel of experts will make during the appointment process. In order to improve the transparency and accountability of the process, one could invite both the committee and the panel of experts to explain the reasoning on which their selection of shortlisted candidates is based. This could help the committee make informed decisions that could be ultimately explained to the public.     

To conclude, states parties to the ICC should follow the principles advanced by the international bodies and provide the space necessary for the committee, the panel of experts, and civil society to find and assess the most qualified candidates. In order to strengthen the position of the next ICC Prosecutor, a fully transparent and merit-based process that considers experts’ opinion and that involves civil society is needed. This would reinforce the confidence of the public in this prominent figure, and it would help the prosecutor establish his or her legitimacy. Indeed, a selection process that does not live up to these standards may do more harm to the court as a whole. Ultimately, the strength of the ICC depends on the character, quality, and inclusiveness of its leadership.

Maïté De Rue is a policy officer for national criminal justice reform with the Open Society Justice Initiative, where she focuses on criminal justice reforms, and in particular prosecutorial independence and accountability.

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