Electing the Next ICC Prosecutor: Reflections from Sudanese Civil Society

Sudanese have watched the International Criminal Court (ICC) struggle to address crimes committed in their country for the last 15 years. In that time, no trials have started and six suspects remain outside the custody of the court. This experience gives activists in Sudan, who have closely followed the work of the court, unique insight into both the opportunity that selecting the next prosecutor presents and the challenges that will face that prosecutor once he or she takes up the position.

Selection of the Next Prosecutor

Sudanese activists called for a strong and above all independent prosecutor. “They need to look for someone who is not spoiled by politics, who is very professional,” says Montasir Nasir Waren of the Nubsud Human Rights Monitors Organization. “The prosecutor must be independent and not vulnerable,” said Salih Mahmoud Osman, with the Darfur Bar Association. “They should not hesitate to take action against individuals, whatever their positions, who are implicated in the commission of crimes.” Mossaad Mohammed Ali, Executive Director of the African Center for Justice and Peace Studies, agreed, saying “they should not be susceptible to either pressure or benefits.”

Given the Sudanese experience, in which cases have been stalled by the lack of arrests and where former President Omar al-Bashir thumbed his nose at his ICC arrest warrants by traveling extensively, there is understandably a focus on the diplomatic capacity of the next prosecutor to build support for his or her cases. “The priority now as it seems is how to make the appropriate outreach regarding influential individuals and prosecutions. The diplomatic side is more important than the day-to-day management,” says Osman. Ali agrees: “My own perspective is that diplomacy is very much needed. The OTP [Office of the Prosecutor] cannot work efficiently without collaboration from states.”

Another activist, Ali Agab, called for a prosecutor who is not only “impartial” and “qualified,” but also “innovative.” Abbas agrees, saying we need to think about “what new they will bring to the court.” Given the challenges facing the court, the status quo simply will not do. Osman also notes that the new prosecutor will need to “communicate with, and listen to, victims and understand their demands.”

As much as the need for independence, competence, and diplomatic credentials were raised, activists have a sense of realism about the process. Independence is importance, but it will also need to be projected. We need “someone who will look neutral to Sudan and the African countries,” says Waren. The search for acceptability, however, should not trump qualifications. Ali notes that there have been “compromises, like saying where people should be from, but qualifications should be the most important thing.” Ultimately, however, there was awareness that balancing all these considerations can be delicate line to walk. “It is tricky. You need to be independent, but on the other hand, you need to be really experienced in dealing with these actors,” says activist Majid Maali. In this context, it is vital that the selection process is managed clearly and transparently.

An Agenda for the Next Prosecutor

In Sudan, the ICC investigation has focused on war crimes, crimes against humanity, and genocide allegedly committed in Darfur since 2003. The court has experienced several difficulties in relation to its investigation in the country. Government opposition to the court’s intervention made it impossible to conduct investigations inside the country, and once the ICC issued arrest warrants, the lack of cooperation, not only of the government of Sudan but also other governments who declined to arrest al-Bashir, has meant that trials cannot proceed. Furthermore, opponents of the arrest warrants mobilized political opposition to the court, in particular within the African Union, which has taken the position that the ICC cannot prosecute heads of state. The change of government in Sudan has fundamentally altered these discussions and opened up new possibilities for national action. The activists interviewed for this blog, nonetheless, wanted the ICC to maintain its engagement.

Victims “have been waiting for almost 15 years, and now they have hope that there will be collaboration and hope that justice will make progress even despite the legal obstacles to doing so inside Sudan,” says Ali. He said that even victims outside Darfur “are demanding the ICC because they don’t trust the Sudanese judiciary and Sudanese laws.” In response, argues Maali, the court needs to take their needs and, in particular, reparations seriously.

“The new prosecutor should keep the work in Sudan going,” says activist Reem Abbas. A key priority will be bringing about a resolution to the al-Bashir case. This will require the new prosecutor to “talk to the government about the best way to hold al-Bashir accountable.” However, the ICC could also investigate others, including, as Abbas notes, people on the list compiled by the UN Commission of Inquiry, which recommended referral of the Darfur situation to the ICC in 2005.

Others call for prosecution of crimes committed elsewhere in the country. Areas for additional investigation include the killing of protesters in 2013, 2018, and 2019. “Most of these incidents can be identified as crimes against humanity,” says Osman. Ali agrees but also highlights crimes committed in South Kordofan and Blue Nile, which “the ICC has not had the chance to investigate.” Both sets of crimes are currently outside the jurisdiction of the court, but activists suggest that either a new Security Council resolution or an Article 12 declaration from the new government could overcome this limitation.

The court could also consider how to support the Sudanese national system. “I think that the new [ICC] prosecutor could focus on providing technical support to the Sudanese justice system,” says Maali. This could include training for lawyers and prosecutors, as well as documentation. The ICC Office of the Prosecutor “has testimonies of people who have been dispersed around the world [and which] can be the pillar on which prosecutions are based” whether in The Hague or in Sudan, and supporting expanded documentation may also be useful. “Unfortunately we don’t have proper documentation of the past violations… that can’t be good for the court,” says Maali.

Outside Sudan, there was concern about the need to address crimes in Myanmar and Afghanistan, in particular to show seriousness in prosecuting crimes committed against Muslims. Concern was also expressed about serious human rights violations committed in the context of the war in South Sudan, noting, again, that there are jurisdictional challenges that would need to be addressed.

Management and Communications Priorities

In considering how the next ICC prosecutor should build his or her team, Sudanese activists highlighted the need for local knowledge and understanding. “They should hire not only brilliant lawyers,” says Osman, but those who “know more about the history of the place and the interaction of ethnicities, cultures, and religions in the region.” Ali recommends “that they recruit people with familiarity with the language and culture of the country that is under investigation.” Diversity on the team was also recognized to be important to counter misinformation and “engage with the impression of the court as imperialist and Western.”

Sudanese actors urged the next ICC prosecutor to learn from the way that the lack of state cooperation has hampered the Darfur case, and prioritize the mobilization of support. As Osman put it, the “victims are disappointed that the ICC failed to at least bring the few identified individuals before the court.”

“Since the warrant was issued at the time of Moreno Ocampo [the first ICC prosecutor], ICC has been powerless. This is something that the ICC and the members need to address. They need to make it effective,” says Waren. To do that, activists suggest, they need to secure goodwill from both states and populations. Ali advises that the new prosecutor “needs to be able to engage with states that have not so far been supportive.”

“More countries need to back up the ICC. It doesn’t have police, so a lot of people see it as a joke,” says Abbas. Others underline the need to engage the people. “What [the ICC] can really depend on is the people of Sudan, not the politicians,” says Waren. They need to be more engaged with media and use other human rights institutions as a platform and “invest in branding,” says Abbas.

To do that, however, the court needs to be effective in its core investigative work. “The top priority,” says Ali Agab, “should be to repair the damage that was done following the failure of the previous cases over the last few years and [the next ICC prosecutor] should start reports of experts on these.”

While there is clearly a need to get the ICC house in order, its capacity will ultimately always be limited if it is not complemented by other institutions. “There is also diminishing interest in the international community’s responsibility to protect,” says Osman. “The new prosecutor should be a person who can bring to the attention of the international community its legal and moral responsibility.”

The views of Sudanese highlight the difficulty of the job and the complexity of carrying it out. It is essential that the Committee on the Election of the ICC Prosecutor and states parties ensure the process is rigorous and transparent in order to select someone up to the task.

Olivia Bueno is an independent consultant who has reported on the impact of the International Criminal Court in Africa for several years. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative.

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