By Ovo Imoedemhe, Ph.D.
Assistant Professor, School of Business and Law
Dah Al Hekma University
The Bureau of the Assembly of States Parties (the Bureau) of the International Criminal Court (ICC) is poised to elect the next Chief Prosecutor in December 2020. The process for electing the next Chief Prosecutor of the ICC began in March 2019. One of the four shortlisted candidates is Susan Okalany a woman, and a high court judge from Uganda. Might we expect another African woman as ICC’s Chief Prosecutor? The Rome Statute of the ICC entered into force on 1 July 2002, and vital to achieving the objectives of the ICC is the effective functioning of the Office of the Prosecutor (OTP). Since 2003, the ICC has had two Chief Prosecutors, the first was Luis Moreno-Ocampo (from Argentina), and second, Fatou Bensouda (from the Gambia). Having been appointed in 2012, Bensouda’s nine-year non-renewable term expires in June 2021, as such the procedure for the election of the next Chief Prosecutor has been ongoing. Who will emerge as the third Chief Prosecutor of the ICC?
The Process Triggered
Guided by Article 42(3) of the Rome Statute, which sets out the main qualifications of the Prosecutor, the Bureau of Assembly of States Parties (the ‘Bureau’) adopted Resolution ICC-ASP/1/Res.2 amended by Resolution ICC-ASP/3/Res.6, entitled ‘Procedure for the Nomination and Election of Judges, the Prosecutor and the Deputy Prosecutors of the International Criminal Court’ (Nomination Resolution). The Nomination Resolution contained rules that govern the nomination and election of the next Chief Prosecutor of the International Criminal Court.
In furtherance of the search and to ensure a smooth and transparent nomination process, the Bureau appointed a five-member Committee on the Election of the Prosecutor (CEP) and five Panel of Experts. (members of the CEP and Panel of Expert can be found here) The Panel was to assist the CEP in an advisory capacity. The mandate of the CEP and the Panel was to facilitate the nomination and election of the next Prosecutor in accordance with the working methods set out in the Nomination Resolution and Article 42 of the Rome Statute. Critical to the process is paragraph 33 of the Nomination Resolution, which states that ‘every effort shall be made to elect the Prosecutor by consensus’. Paragraph 28 states that the procedure for the nomination of candidates for judges shall apply mutatis mutandis to the nomination of the Prosecutor and para 29 stipulates that nominations should preferably be made with the support of multiple States Parties.
The Four Shortlisted Candidates
Given the enormity of the responsibility of the office and expectations from the international community, the stakes are too high to allow considerations other than merit to dictate the choice of the next Chief Prosecutor. Apparently, Human Rights Watch along with other NGO Groups support a process that prioritises merit over diversity, gender balance and other considerations. The vacancy announcement was published on the ICC website on 2 August 2019 with deadline for applications on 31 October 2019. On the deadline, the Committee on the Election of the Prosecutor (CEP) received a total of 116 applications. Further extension increased the total to 144 applications on 25 November 2019.
The applications were broken down as follows:
Data source: ICC-ASP/18/INF.4/Add.1- ICC-ASP-18-INF4-Add1-ENG.pdf (icc-cpi.int)
Data source: ICC-ASP/18/INF.4/add.1- ICC-ASP-18-INF4-Add1-ENG.pdf (icc-cpi.int)
With the assistance of the panel of experts, the CEP chaired by Sabine Nölke interviewed candidates and submitted a report on 30 June 2020 which contained a list of four shortlisted most highly qualified candidates as follows:
Morris A. Anyah (Nigeria)- currently a trial attorney in the Law Office of Morris A. Anyah LLC in Chicago, Illinois, United States of America.
Fergal Gaynor (Ireland) – currently the Reserve International Co-Prosecutor at the Extraordinary Chambers in the Courts of Cambodia.
Susan Okalany (Uganda) – currently a judge of the High Court of Uganda and a judge in the International Criminal Division of that Court.
Richard Roy (Canada) – currently Senior General Counsel with the Public Prosecution Service of Canada.
Perhaps Mark Kersten’s expectation and sigh of relief noting that after months of waiting, one of the four shortlisted candidates will become the next Chief Prosecutor of the ICC was too swift, as the Bureau adopted a Way Forward document to supplement the process.
Is the Expanded List the Way Forward?
The way forward document considered that expanding the list would help to identify a consensus candidate. This means that in addition to the four shortlisted candidates, other potential (longlisted candidates from the 140 remaining applicants) who were originally interviewed by the CEP have now been included on the expanded list. Both the expanded list and the four candidates shortlisted by the CEP are currently participating in the new round of public hearings. This implies that the process by which the four candidates emerged out of 144 applicants and the virtual hearings heard on 29 and 30 July 2020 by the four shortlisted candidates (virtual hearings of the four shortlisted candidates are available here and here) have been rendered void and of no effect.
Arguably, this long-winded process seems to undermine the efforts of the CEP and Panel of Expert who despite the difficult conditions amidst COVID-19 restrictions and challenges delivered the terms of reference for the appointment of the next Chief Prosecutor of the ICC in record time. Will the consideration of an expanded list make the process longer or shorter? Will the expanded list provide the ASP the much-desired consensus candidate? Is the introduction of an expanded list in line with the provisions of the Rome Statute on the appointment and election of the Chief Prosecutor or is it a detour?
A few commentators and scholars are in favour of the expanded list while others think that states should respect the process they established and elect one from the four shortlisted candidates. For example, Gunnar Ekelove-Slydal approves of the expanded list. Ekelove-Slydal asserts that the problem with the four shortlisted candidates may not relate to their qualifications and experience. Rather, it is that three of the four cannot be elected without violating the custom of regional rotation and the Rome Statute. He argues that Morris A. Anyah and Susan Okalany are both Africans, as is the current ICC Prosecutor. Therefore, they are disqualified going by the regional rotation tradition. Gunnar postulates further that by virtue of Article 42(2) of the Rome Statute, the Prosecutor and Deputy Prosecutor cannot have the same nationality, which excludes Richard Roy who is a Canadian. This leaves Irish Fergal Gaynor as the only electable candidate. Analysing the process so far and quoting Article 112(7) of the Rome Statute, Jon Heller argues that the opening up of the process to other candidates or rejecting the four shortlisted candidates is not a deviation but a part of the process.
These arguments in favour of the expanded list seem plausible. However, the several extensions in the process raise the questions of transparency and accountability especially given the office of the Chief Prosecutor of the ICC, which highlights independence, impartiality, and fairness. The circuitous process seems convoluted, complicated, and comatose. If at the end of a nomination procedure for which the CEP and Panel of Experts were appointed and had rigorously engaged in, there could be recourse to an expanded list, then the process or appointment of these expert seems a wasted effort and should not have been. Therefore, the International Federation of Human Rights argue that ‘states should respect the process they established’ and elect one of the four shortlisted candidates. This argument is sound and in line with the emphasis of the Bureau, where it noted the exceptional nature of this new development and stressed that it should not be perceived as a precedent for future Prosecutor elections.
The Position of the Chief Prosecutor: How Enviable?
Given that the ICC ought to be a beacon of hope for international justice for victims and the need for the Prosecutor to be of diverse competences and qualities, high degree of care, transparency and accountability in the selection process is required. Therefore, a merit and experience-based recruitment process is essential. According to Kate Vigneswaran and Melinda Taylor, the position of the Chief Prosecutor of the ICC is an enviable and the ‘most high-profile prosecutorial appointment in the world’. Admittedly, the responsibility of the Chief Prosecutor is enormous, given the political imbroglio within which they are to ensure independence and impartiality in the discharge of their functions. However, the independence of the Prosecutor and indeed the effectiveness of the ICC is undermined because of the role of the UNSC, which is a political body composed of five permanent members, some of whom have refused to be a part of the ICC and yet they are empowered to refer situations of other countries to the ICC.
The contours of the nuances of the relationship between the ICC and the Security Council can be better delineated for an improved effectiveness of the Prosecutor and the ICC generally. The point of contention has been, why will a political body be empowered to refer matters to a judicial body? What moral justifications do the permanent five have to refer situations in other countries to the ICC when a few of them do not feel the need to submit to the jurisdiction of the ICC?
Significantly, the two pillars upon which the ICC functions are complementarity and cooperation. Complementarity means that states have primacy of jurisdiction to investigate and prosecute perpetrators of international crimes. The ICC needs the full cooperation of state parties where the ICC decides to investigate and prosecute in situations where the state concerned is unwilling or genuinely unable to investigate and prosecute. The lack of full cooperation from state parties make the role of the prosecutor not only less attractive, but also frustrating.
By 13 December 2020, the long-winded process in search of the next Chief Prosecutor of the ICC is expected to come to an end. This time frame seems unrealistic given the expanded list of candidates from which a qualified candidate should emerge. The way forward was not an expanded list, but it would have been for the Bureau of the ASP to adhere to Article 42 of the Rome Statute. Also, the argument regarding regional rotation custom by which three of the four shortlisted candidates have supposedly been disqualified should not trump statutory provision and the requirement of a qualified, competent, and morally upright candidate for the position. A merit-based approach must be adopted to ensure that the election of the next Chief Prosecutor is devoid of politics and sentiments.
It is admirable that Susan Okalany being the only woman among the four finalists made it to this stage out of 144 applicants. The CEP reserved some glowing recommendations about her. Regardless of the expanded list, it is advocated that merit, competence and experience should determine who becomes the next Chief Prosecutor of the ICC.