The Bureau of the Assembly of States Parties (ASP) has decided to extend the deadline to apply for the position of International Criminal Court (ICC) prosecutor by nearly four weeks and has requested States Parties to further disseminate the vacancy announcement. The vacancy announcement was first published on August 2 and originally listed October 31 as the deadline to receive applications. However, after a briefing from the Chair of the Committee on the Election of the Prosecutor, Ambassador Sabine Nölke of Canada, the Bureau moved to extend the deadline until Monday, November 25.
Ambassador Nölke cited specific reasons [pdf] why the deadline to receive applications should be extended. These reasons include that “some regions were significantly under-represented amongst the applicants and there was an imbalance in relation to gender and legal systems.” The last available public information [pdf] indicates that only 55 applications had been received by the Committee on the Election of the Prosecutor. Therefore, the committee recommended more time “to ensure that a wide range of qualified candidates had the opportunity to apply for the position.”
It is imperative that States Parties to the ICC adhere to the request of the President of the ASP to disseminate the vacancy announcement and encourage qualified candidates to apply. The President especially encouraged ASP Bureau members to promulgate “the vacancy announcement as widely as possible, particularly in regions where fewer applications had been received.”
At this point, the applications that have been submitted to the committee are not public, so it is not possible to know what regions are either over or under-represented. However, it is important to highlight that the overriding criteria for the election of the prosecutor should be merit-based, and the selection process should not be based on an expectation of regional rotation. The last two prosecutors came from Latin America and Africa, and there could be an expectation that the next prosecutor should come from the WEOG region (Western Europe and Other States Group). Regional rotation for prominent leadership positions at international organizations, such as the UN Secretary-General, is a common practice. While that practice might be appropriate for other organizations to ensure a diversity of perspectives and allow under-represented regions to participate in leadership roles, setting a precedent for regional rotation at the ICC could be damaging.
The position of the ICC prosecutor carries very significant responsibilities and requires a high degree of specialization. The ICC prosecutor must meet, among other, the following criteria: be of high moral character; be highly competent in and have extensive practical experience in the prosecution or trial of criminal cases; and have an excellent knowledge of and be fluent in at least one of the working languages of the court (English or French). In practice, the prosecutor must be a leader with significant expertise in complex criminal investigations and prosecutors; demonstrated experience in the exercise of discretion in sensitive cases; outstanding managerial experience; demonstrated independence and impartiality; and no history of workplace misconduct or harassment. The position of the ICC prosecutor serves a nine-year term, and individuals with this combination of skills, personality, and knowledge may not be available in all regions every time there is an election. Electing a prosecutor based on considerations other than merit could have significant political and financial costs.
Furthermore, as pointed out by other civil society organizations, the “representation of women in leadership positions at the ICC is at an all-time low” [pdf]. Therefore, States Parties and the Bureau, in particular, should make efforts to ensure a broad range of qualified female candidates apply for the position of prosecutor. At the moment, Prosecutor Fatou Bensouda is the only female among the four ICC principals (President Chile Eboe-Osuji, Registrar Peter Lewis, and ASP President O-Gon Kwon are all male). By the time Bensouda leaves office in 2021, there will be a new ICC president and a new ASP president, and it is not known who will be serving in those positions. However, considering the current low level of representation of females among ICC principals, it is likely that the ICC could end up with an all-male leadership. Female candidates should be encouraged to apply, and their applications should get a similar level of scrutiny to those put forward by male candidates.
As noted in a previous blog, the strength of the ICC depends on the “character, quality, and inclusiveness of its leadership.” A broad pool of applicants should include a wide range of geographic representation, including from all five United Nations’ regions, as well as balance among male and female candidates.
The full vacancy announcement and details on how to apply are available here.
This was first published on the International Justice Monitor.