By Journalists for Justice
Cuno Tarfusser, a former judge at the International Criminal Court (ICC), has gone public to say he was one of the 144 applicants for the position of ICC Prosecutor. Tarfusser did so in a letter he sent to the Bureau of the Assembly of States Parties asking for all documents relating to his application be made public. The Bureau is a 21-member committee that manages the affairs of the 123 ICC member states in between their annual meetings, called the Assembly of States Parties (ASP).
Tarfusser has made available to Journalists For Justice (JFJ) his letter to the Bureau as well as the motivation letter he wrote to the committee that managed the process of sifting through the applications for ICC Prosecutor. In the scathing letter dated July 31,Tarfusser outlined his grievances and gave the bureau a deadline.
The former judge said he had not received a response from the Bureau by August 31, and decided to release his letter to JFJ.
Tarfusser’s decision to go public is significant because the Bureau has kept confidential the names of all, but four of the other applicants. The list of four was made public on June 30.
A year ago, the Bureau formed a committee and a panel of experts to receive applications for the position of ICC Prosecutor because the current one, Fatou Bensouda, will be leaving office in June 2021. The Bureau assigned the committee and the panel of experts the task of whittling down the applications to a short list of the best candidates for the states to choose from. The committee concluded its work mid this year and presented the Bureau with a report and short list of four candidates, from the 144 applications they received, on June 30. This short list has generated a lot of debate among ICC watchers. Ideally, the short list would have enabled states to quickly choose one of the candidates. In practice no consensus is emerging on a “best candidate”. And more than one ambassador or the legal counsellor on the Bureau says [s]he has no hope that such a consensus will be achieved in the foreseeable future.
The process the Bureau initiated last year is new to the ICC and its membership. The Rome Statute, the international treaty and thus the legal framework that governs the work of the ICC and its member states, only states that a Prosecutor will be elected by an absolute majority of the ASP. Past resolutions of the ASP only provide for a nomination period ahead of the election for chief Prosecutor.
Bensouda and her predecessor and the first ICC Prosecutor, Luis Moreno Ocampo, were elected under the previous process. The Rome Statute still applies as do the previous resolutions of the ASP. This is why when the Bureau received the short list of candidates and the report of the committee on how they reached that short list, the Bureau then opened up the nomination period for candidates for Prosecutor starting July 1 and ending on September 22. This week the Bureau extended the deadline until October 22, a confirmation that they have failed to reach consensus on a single candidate to be presented to the ASP to vote on.
An obvious question about Tarfusser’s application is whether he should have applied to be Prosecutor after having served as an ICC judge for 10 years until July 2019. In his motivation letter, Tarfusser said it was appropriate for him to apply for the position.
“Due to my experience as judge of the Court, I am in the right position to address as prosecutor those precise links in the investigative and prosecutorial procedures that would improve the overall ability of the Office to succeed.
“I am inspired in this belief by the experiences of Judge Silvia Fernández de Gurmendi, who was first special advisor and director at the Office of the Prosecutor until three years before being elected a judge in 2010, then the Court’s president from 2015, and of Judge Kimberly Prost, who was serving as President Fernandez’s Chief of Cabinet until her swearing in in March 2018,” said Tarfusser in his motivation letter.
Tarfusser’s July 31 letter to the Bureau can be read here.
Tarfusser’s full motivation letter accompanying his application for the position of Prosecutor can be read here.