Compared to the election of the Chief Prosecutor of the International Criminal Court, picking the Registrar every five years is usually a fairly dull affair with an almost predictable outcome when the 18 ICC judges cast secret ballots to choose the next office holder. But this year, the judges delivered a stunning result: Osvaldo Zavala Giler.
The choice of the new Registrar was a surprise to everyone who was following the process closely.
Zavala, who has replaced Briton Peter Lewis at the court’s Registry, has the unique background of serving as a special assistant to three of the four registrars who preceded him.
Before his election, the three principals of the court – the President, the Prosecutor, and the Registrar – were all European. By picking Ecuadorian Zavala, the first non-European to hold the office after French, Italian, Dutch, and British registrars, the judges not only selected a candidate from another continent, but they also voted for continuity at the court that this year celebrates 25 years of the adoption of the Rome Statute, which established it.
The new Registrar can be sure that his long experience at the court will be invaluable and will influence his thinking as he takes up his new role.
“It is a strength to have been part of the office where I will be working – it’s been years in the making,” he said during an interview with Journalists For Justice. “As a person from within the court, this allows me to start my mandate in a different position – I don’t have to learn so much about the challenges and opportunities, but rather start dialogues that are conducive to addressing issues in a more direct manner.”
A similar debate preceded the election of Prosecutor Karim Khan, with proponents of continuity rejecting the selection committee’s shortlist of “outsiders” or “fresh blood”. Instead, they proposed the election of a person who was familiar with the court’s operations and would immediately get down to business.
Hard lessons have been learnt along the way, perhaps some more significant than others. “I witnessed decisions being made in the context of the challenges they [registrars] were facing at the time – and the opportunities they were trying to seize. The opportunity I have now is to start looking at the challenges we have from a new point of view,” said Zavala.
As an insider, the new Registrar may not just provide continuity, but also gets an opportunity to set the ICC on a new trajectory, particularly at a time when the court faces an ambivalent African continent and renewed enthusiasm from European Union states and the United States of America (US) in the face of Russia’s invasion of Ukraine.
The ICC has in recent times survived certain challenges. The past five years were characterised by austerity measures and financial difficulties, exacerbated by liquidity problems and the pandemic, which affected the ability of the Assembly of States Parties (ASP) to contribute to higher budgets. The court’s efforts to investigate several possible cases landed it in trouble with powerful opponents, leading to the US imposing sanctions on senior ICC officials, including former Prosecutor Fatou Bensouda, and threatening the court’s operations.
However, these are different times as Zavala, who will oversee the court’s administrative function, takes over at the Registry. He is inheriting a much steadier, better-funded ship. In December 2022, ICC member states approved a 12.2 per cent increase in the court’s annual budget, thus boosting its operations. At the same time, states’ pledges of funding and personnel for Ukraine are coming in fast and furious.
ALSO READ: Osvaldo Zavala Giler sworn in as the new ICC Registrar
“Sustainability is vital because we want to have the capacity to address the institution’s work,” he said. “At the same time, I think it is essential to have an extra-budgetary allocation that can enable the institution to fund itself without prejudice to the regular budget or the main activities of the court – and this is not new. We have, for example, the special allocation for witnesses, that is, the trust fund for family visits, interns, and visiting professionals. We have the grant for complementarity and cooperation activities. But the important thing is to preserve the operational ability of the court through its regular budget and funding.”
One of the Registrar’s critical roles is preserving the court’s institutional legitimacy. Critics argue that there has been exaggerated attention to Ukraine in recent times and the neglect of other situations such as Nigeria and Palestine.
Zavala does not agree.
“The perceptions keep changing… we were too focused on Africa, and now we are too Western, but we are also anti-West…. that kind of duality of perspective will always be there. We have a challenging mandate, but it doesn’t mean that it is not subject to criticism or different views. The main challenge is the ability of this institution to navigate a different political context, internationally speaking, and preserve its legitimacy according to the constitution.” he said.
As the court commemorates the 25th anniversary of the adoption of the Rome Statute, Zavala looks to the international community to reinvigorate its commitment to justice and the central role it plays in peace and security: “The work that we do is constantly testing the mandate of the organisation. I’m not saying that our legitimacy is always at risk, but at least it’s always at stake. We have gone through many different episodes in the history of the court, where the ICC has been put into question by different stakeholders. We have always come out strong.”
The fifth Registrar brings a fresh breeze to the leadership at the ICC. For one, Zavala is the first openly gay person to hold the position of a principal at the court and is not shy to acknowledge that, thanking his husband for his support during his career.
As a founding member of the Sexual and Gender Diversity Network, ICCQ, he acknowledges the challenges he has encountered along the way.
“I have had personal experiences on this issue [homosexuality] ever since I can remember, from my home country growing up, going through law school, getting my first job before the court… All of these places have been full of experiences that have, in one way or another, tested, challenged, or created uncomfortable situations.”
However, he is careful to caution: “I don’t want to create a sense that there’s a problem or an issue, but there is a need for more space, visibility, and dialogue.”
In part, because of his experiences, Zavala wants to focus on building a much more diverse institution. He revealed that a new diversity project is in the offing and is to be unveiled soon.
“We are all subject to and have been subject to different types of aggressions and microaggressions. It is sometimes unconscious bias, ignorance, or lack of information. And sometimes… it is the things that the professional environment responds to, such as stereotypes, premade or judgements of a certain group. By not having a platform to discuss openly by not naming the names of the issues or giving a voice, we are actually allowing the status quo to become established.”
He believes that diversity in the workplace, including gender balance, geographical representation, and multilingualism, should not be seen as a mere exogenous expectation, but must be a value engraved in the court. “We need to give room to intersectionality when we look at diversity. Gender, race, gender identity, sexual orientation, and disability are not isolated characteristics but rather coexist.”
A challenge that is not unique to the ICC is that it operates in environments where anti-LGBTIQ legislation exists. Some of the risks in this context include employee safety and security, non-compliance with local legislation, and reputational issues. “When we’re doing policies, talking about a working environment, one of the topics, for example, is going beyond just professional setting. It’s an institutional risk as well, as we work in places where being homosexual is illegal.”
The Registrar has reason to be concerned. Uganda, an ICC situation country that hosts one of the court’s field offices, recently approved harsh anti-LGBTIQ laws that target and jeopardise the rights of the community and those who support and defend them. The country has often hosted high-ranking ICC officials.
Then there is Senegal, the first country in the world to ratify the Rome Statute of the ICC on February 2, 1999, and which frequently hosts high-level ICC events. Gay sex is punishable by up to five years in prison in Senegal, where arrests and prosecutions have risen sharply in recent years, according to a 2020 global review by the International Lesbian, Gay, Bisexual, Trans, and Intersex Association (ILGA).
To be clear, ICC officials enjoy immunity from foreign criminal jurisdictions during the exercise of their functions.
“Will the court send staff members who could be at risk by being who they are if they go to this place? What is the institutional response to that? How do we address these issues? We need to integrate all these into our conversations. We need to be mindful of those issues when building a common culture,” the Registrar said.
Zavala, known for his dapper dressing and signature bow tie, is optimistic about the future of the court and is looking ahead. “I am a civil servant of this organisation. As Registrar, I see myself as a caretaker of an organisation that belongs to the international community. The most rewarding part of the work is to know that I am dedicating my career to serving an organisation with a mandate like the ICC.”