By Thomas Verfuss
In the course of the year, the 122 states parties to the Rome Statute, the founding treaty of the International Criminal Court (ICC) in The Hague, will have to agree on a new chief prosecutor. The term of the current Prosecutor, Fatou Bensouda, will expire on June 15, 2021. The decision is to be formalized during a session of the Assembly of States Parties (ASP) to be held in New York in December.
Dozens of candidates have applied for the job. The names are officially still confidential, but leaks and rumours are circulating among diplomats, NGO staff members and journalists in The Hague, New York and elsewhere. Below are some of the names being mentioned. Some have confirmed their candidacy to Journalists For Justice (one even shared his written application) or trusted JFJ sources, some are seen campaigning, others are more or less widely known or rumoured to have applied while keeping tight-lipped themselves.
The first ICC Prosecutor, Luis Moreno Ocampo, was from Latin America, the second, Bensouda, is from Africa. Many European states think that it is now “their turn”, for one of their nationals to get appointed to the position; other states are accepting that the new chief prosecutor should come from the Western European and Others Group (WEOG), one of five unofficial regional groups at the United Nations (UN) that play a crucial role when negotiating and attributing important positions.
Below are eight candidates from WEOG countries said or known to be in running for the position, in alphabetical order:
Michelle Jarvis of the UN accountability mechanism for Syria, who was initially on the list below, has denied her candidacy since. She remains committed to her current tasks.
ANTONETTI, JEAN-CLAUDE (France)
Senior judge at the United Nations International Residual Mechanism for Criminal Tribunals (IRMCT), the successor organization to the tribunals for the former Yugoslavia and Rwanda, ICTY and ICTR. Antonetti presided over the ICTY trial in the case against the Serbian nationalist enfant terrible Vojislav Seselj, which is often cited as an example for how international court cases should not be conducted. He was regularly at odds with his colleagues on the bench and thus not known as the consensus builder ICC states parties may be looking for, after Moreno Ocampo’s autocratic tenure and the often-lamented lack of collegiality among the current judges. His age could also be held against him: if elected, he would be almost 79 years old at the beginning of this 9-year term.
BRAMMERTZ, SERGE (Belgium)
Current IRMCT Prosecutor. As Prosecutor of the ICTY, his major successes were the arrests of Radovan Karadzic and Ratko Mladic, the political and the military leader of the ethnic Serbs during the war in Bosnia (1992-1995). Both have since been convicted and sentenced to life imprisonment for their role in the genocide of thousands of Muslims after the fall of Srebrenica. The massacre has been recognized as the only genocide in Europe after the Second World War by two UN courts. Brammertz obtained the arrests of the two Bosnian Serb leaders, who had been on the run for many years, through patient diplomacy, supported by the European Union. Brammertz has been deputy prosecutor of the ICC before, under Moreno Ocampo.
CASTRESANA, CARLOS (Spain)
Castresana has decades of experience as public prosecutor and investigative judge in his home country. From 2007 until 2010, he worked as Commissioner against Impunity in Guatemala, with the rank of Assistant Secretary-General of the United Nations. The Comisión Internacional contra la Impunidad en Guatemala (CICIG) was tasked with supporting the domestic police and prosecution system. Castresana helped investigate homicides and extrajudicial executions, sometimes committed by hitmen hired by previous governments. The CICIG work led to the conviction and imprisonment of a former president of the Latin American country. Castresana is a professor of criminal law and currently practices in a private law firm.
GAYNOR, FERGAL (Ireland)
The Irish lawyer represented victims of the 2007/2008 post-election violence (PEV) in Kenya in the ICC case against Uhuru Kenyatta, the current president of the country. The case never made it to the trial stage after alleged intimidation of prosecution witnesses. Gaynor also worked as a trial attorney and assistant prosecutor at the ICTY, ICTR, and the Extraordinary Chambers in the Courts of Cambodia, that try suspects of the mass atrocities of the Khmer Rouge in the 1970s. Gaynor is currently with the Commission for International Justice and Accountability (CIJA), an NGO that conducts criminal investigations during armed conflict. He also currently represents victims in the controversial situation in Afghanistan before the ICC.
KHAN, KARIM (United Kingdom)
The eloquent British lawyer represented William Ruto, currently Deputy President of Kenya, during his trial before the ICC for his alleged role in the PEV. The prosecution case collapsed half way through the trial, after allegations of witness interference or even killing that never led to contempt charges. Khan was the first president of the ICC Bar Association that represents counsel for both suspects and victims. At the Special Court for Sierra Leone (SCSL) he defended former president Charles Taylor of Liberia. He worked for the prosecution at both ICTY and ICTR. Currently Khan, who has Pakistani roots, heads the United Nations investigation of the crimes of Islamic State or Da’esh in Iraq. In this function he holds the rank of Assistant Secretary-General of the UN.
STEWART, JAMES G. (New Zealand)
James G. Stewart is currently an academic at the University of British Columbia in Western Canada. He previously worked for the prosecution at both ICTY and ICTR. He spent six months interviewing perpetrators and victims of the Rwandan genocide, an experience that he says “shaped him profoundly”. Stewart also served the legal division of the International Committee for the Red Cross, which is considered the custodian of the Geneva Conventions and of International Humanitarian Law. He received the La Pira Prize for an article on unlawful confinement at the American military detention camp in Guantánamo Bay and the Cassese Prize for his work on the liability of corporate actors for international crimes.
STEWART, JAMES K. (Canada)
The Canadian lawyer James K. Stewart is currently deputy prosecutor at the ICC, under the incumbent Bensouda. The Gambian lawyer Bensouda had been deputy prosecutor under Moreno Ocampo, the first Prosecutor, before she succeeded him in 2012. At a time when many think the ICC needs a fresh start, some diplomats wonder if it is a good idea to once again let a chief prosecutor be succeeded by his or her incumbent deputy who is inevitably closely linked to the work of the past. Stewart formerly worked for the prosecution at ICTY and ICTR. At the ICTY Office of the Prosecutor (OTP), he held the position of Chief of Prosecutions and at the ICTR OTP he was Chief of Appeals. Stewart started representing the prosecution in domestic criminal trials in Canada in 1979.
TARFUSSER, CUNO (Italy)
As ICC judge Tarfusser presided over the trial with the highest-ranking accused so far, former president Laurent Gbagbo of Ivory Coast. The case ended with an acquittal. Tarfusser was very critical of the performance of the prosecution, both about the quality of the evidence and its presentation before the bench, both in writing and during hearings. In his native Italy Tarfusser gathered experience with the prosecution of large-scale organized crime cases with dozens of mafia suspects. As chief of the Public Prosecution Office in Bolzano he launched a project to increase its effectiveness. The organizational model he introduced became the blueprint for the “best practice project” launched by the Italian Ministry of Justice for all judicial offices.