By Thomas Verfuss in The Hague
This time states wanted to do things well. In the past the appointment
processes of high international justice officials have often been criticized as
opaque, interest-driven, behind-closed-doors dealing, horse-trading and an exchange
of posts and favours. The selection process for the third ICC Prosecutor was
meant to be exemplary: merit-based, transparent and independent.
After many months of job application procedure, the process is now often
informally described by professional observers as circus, farce or tragicomedy.
It is even on the record in an
official document of the Bureau of the Assembly of States Parties
(ASP) issued at a moment of impasse in the process where it says: “This way
forward shall not be seen as a precedent for future Prosecutor elections or
other Assembly processes.”
What went wrong? The Bureau of the ASP tasked a Committee on the Election of the Prosecutor (CEP), chaired by Sabine
Nölke, former ambassador of Canada to The Hague, with making a pre-selection. The
diplomats were assisted by a group of experts from the field, like lawyer for victims
They came up with a
list that raised many eyebrows.
The “usual suspects” _ candidates with long-standing experience in the
field of international criminal justice _ that all insiders had expected to be
on the list were not there. In fact, the Nölke Committee had decided that it
was time for “fresh blood”. Thus it deviated from the official terms of
reference for the search task. The Nölke Committee added the additional
criterion after informal conversations with state representatives _ without
documenting how many and with which mandate.
There are situations where fresh blood can be useful for an
organization, when new ideas are needed, when people have worked for many years
in their daily routine in an institution without seeing its deficiencies any
more. But whereas this certainly also applies to the ICC and changes are
urgently needed at the dysfunctional court, according to many observers, the
court now needs someone with some intimate knowledge of its inner workings to
be able to quickly identify things that need to be changed at the Office of the
Prosecutor (OTP), not someone who, as a newcomer, can be misled by smokescreens
from the vested actors. And externally, the court needs someone with experience
with international relations, used to dealing with diplomats, in order to be
able to mobilise the support of states parties in the face of threats from
hostile powers in Washington and Jerusalem.
In the past states have tried to [s]elect a new Prosecutor by consensus,
to demonstrate joint strong support for the successful candidate. This time
round, in spite of months of talks, no consensus emerged on any of the
shortlisted candidates. Finally, it was decided to open up the process to the
other 10 candidates who had made it to the Nölke Committee’s longlist of 14.
They were asked if they were interested in rejoining the race. Five of them
said yes. They are:
Carlos Castresana Fernández (Spain), Prosecutor
of the Spanish Court of Auditors;
Karim A. A. Khan (United Kingdom), Special
Adviser and Head of the Investigative Team to Promote Accountability for
Da’esh/ISIL crimes (UNITAD);
Francesco Lo Voi (Italy), Chief District
Prosecutor in Palermo, Sicily;
Robert Petit (Canada), Senior Official at the
United Nations Follow-on Mechanism for the Democratic Republic of the Congo;
Brigitte Raynaud (France), Substitut général at
the prosecution of the Paris Court of Appeals.
Other candidates chose not to rejoin the race for different reasons.
There was dissatisfaction about the selection process where the rules of the
game were changed when the game had already started. And there were frictions and
frustrations about allegations of misconduct from the MeToo movement, that were
uttered, but not substantiated with concrete evidence. But still, the
allegations of harassment were the talk of the town while candidates could not
defend themselves because no names were officially and publicly put forward.
No consensus on who may become the third ICC Prosecutor has emerged with
less than a week before the start of the ASP’s annual meeting. It starts on
December 14 in The Hague and will run until December 16. It will then continue
on December 17 in New York and is scheduled to conclude on December 23. Many diplomats
do not expect a candidate to be elected this month. They believe a compromise
candidate may be found during another session in January or February next year.
The term of the current prosecutor, Fatou Bensouda, ends in June next