The election of the International Criminal Court’s prosecutor is one of the most consequential decisions that states parties can make. It has a significant impact on the institution’s leadership and direction. ICC elections have suffered from a lack of transparency and from political deals. The 2020–2021 election of the third prosecutor promised significant improvements with respect to past elections. However, the process presented numerous challenges, including the initial rejection of the shortlist of candidates, a lack of vetting, and inadequate consultations.
Between April and June 2021, the Open Society Justice Initiative interviewed actors who had been directly involved with or closely monitored the election process. Based on those interviews and additional desk research, the Justice Initiative has produced the briefing paper 2020–2021 International Criminal Prosecutor Election Process: Insights and Recommendations for Future Elections.
The paper makes no judgement about the elected prosecutor nor any of the other candidates. Instead, it focuses on process. It acknowledges that the process had been carefully designed to ensure a merit-based and de-politicized election. Among other relevant components, it involved the creation of a Committee on the Election of the Prosecutor and a Panel of Experts mandated to identify the most qualified candidates. Significantly, in an effort to promote fair selection of candidates and build consensus, states parties were “strongly discouraged” from putting forward nominations.
While the process marked progress with respect to the previous two prosecutorial elections, multiple incidents brought into question the transparent, fair, and merit-based nature of the process. In addition, the election ended up being remarkably political.
Among other relevant findings, respondents interviewed by the Justice Initiative praised the establishment of an independent committee to assess individual applications. However, several interlocutors questioned the committee and panel’s composition and appointment processes. While respondents generally appreciated the committee’s transparency and the level of independence that its members exhibited, some criticized the committee’s working methods. In particular, there was a perception that the committee’s conclusions were almost exclusively based on interviews with candidates, to the detriment of a more comprehensive assessment of skills and experience. Many observed that states parties should make more efforts in the future to ensure a wide pool of qualified candidates, including outreach to women and applicants from underrepresented regions.
The Justice Initiative sought feedback on the two rounds of state party consultations, which were held from August to September 2020 and from December 2020 to February 2021. Interlocutors expressed several concerns about the first round of consultations, including the fact that not all states parties were consulted. They also noted that those consultations focused on agreement or disagreement with the shortlist rather than on building consensus. Respondents felt more positive about to the second round of consultations and offered particularly positive remarks on the involvement of focal points.
The expansion of the list of candidates had a significant impact on the timeline and tenor of the election. Most of those interviewed believed that the committee’s shortlist was rejected only by a small number of powerful and vocal states. Many also observed that a vast majority of those who opposed the shortlist did so because it omitted their desired candidate, whether that was a national of their country or another candidate of their preference. This raises questions about the Assembly of States Parties’ ability to overturn a result when dissatisfied with the outcome of an independent assessment for reasons other than procedural failures.
Interlocutors overwhelmingly welcomed the public hearings with candidates, although they offered very diverse views on the way they were structured. State representatives generally found the hearings’ format to be adequate. Observers and some of the candidates themselves were more critical. In their view, the format was inadequate to elicit substantive information about the candidates and their vision for the Office of the Prosecutor. This set of respondents took issue with the repetitive questions, the short time allocated for responses, and the lack of opportunity to introduce follow-up questions on the spot.
Several actors criticized the role of the presidency of the Assembly and felt that the Bureau’s decisions lacked transparency. According to many interlocutors, the presidency capitulated to pressure from powerful states and failed to demonstrate independent leadership throughout the process. The presidency and certain members of the Bureau refused to implement vetting despite advocacy for an independent verification process to ensure that candidates meet the “high moral character” requirement. The lack of vetting cast a shadow over the election process. It allowed rumors about the candidates’ moral character to spread, leaving states with no tool to have allegations independently verified.
Finally, interviewees commented on the failure to achieve consensus and recourse to a vote. Some suggested that the Assembly should consider moving away from consensus because the election demonstrated that it is difficult to achieve. Others disagreed, noting that initial reactions to the shortlist polarized states parties with an impact on consultations throughout. Some interlocutors also emphasized the importance of always aiming for consensus because such efforts help ensure that consultations remain focused on merit.
Overall, the process made important innovations on which future prosecutorial elections can build. However, the problems identified call for a serious reconsideration of the election process as a whole. Future elections should not simply keep the same features with minor fixes. Rather, states parties should re-assess the role of the Assembly in the election process and how it can ensure absolutely fair, transparent, and merit-based elections.