The selection process for the next chief Prosecutor of the International Criminal Court (ICC) started a year ago. Last week, the Committee on the Election of the Prosecutor (CEP) announced that 4 - unexpected - candidates made the cut.
SHORTLISTED CANDIDATES
· Fergal Gaynor (Ireland)
Mr Gaynor currently works as co-Prosecutor at the Extraordinary Chambers in the Courts of Cambodia, trying members of the Khmer Rouge and carries with him over 18 years of experience in the investigation, prosecution and representation of victims of war crimes, crimes against humanity and genocide. He notably took part in the trial of Radovan Karadžić, the so-called “Butcher of Bosnia”, at the ICTY.
· Morris Anyah (Nigeria-U.S.A.)
Mr Anyah works as a trial attorney in Chicago, U.S.A. He was the lead counsel who defended Charles Taylor, former president of Liberia, in his appeal at the SCSL. He was admitted to the Bars of Illinois, Georgia and District of Columbia and to lists of counsel at the ICC, STL and SCSL. He speaks English, Dutch and Igbo.
· Susan Okalany (Uganda)
Ms Okalany is currently attached to the Family Division of the High Court of Uganda and is often assigned work at the International Crimes Division (ICD), She previously headed the Department of gender, children and sexual offenses in the office of the Directorate of Public Prosecutions. She led a prosecution team in the infamous 2010 Kampala twin bombings case and secured conviction. She speaks English, Ateso, Swahili, Luganda and Luo.
· Richard Roy (Canada)
Mr Roy is currently Senior General Counsel with the Public Prosecutor Service of Canada.
The CEP composed of 5 individuals from the 5 regional groups and supported by a panel of 5 experts in charge of selecting the best profiles notably took into account: formal eligibility requirements of the Rome Statute; professional experience as prosecutor in investigating, trying and appealing complex criminal cases; expertise and in-depth knowledge of criminal law and procedure, international humanitarian law and public international law; proven record of independence and impartiality; commitment to upholding justice, accountability and human rights, and personal qualities such as high moral character.
ONGOING SELECTION PROCESS
The next step of the process is the organisation of a consultation among State Parties led by the President of the Assembly to identify a consensus candidate. A public roundtable is tentatively scheduled for September 2020 during which key stakeholders, including civil society organisations, will have the opportunity to ask questions to the candidates. It is important to note that States are free to nominate others outside of this shortlist. Selection will be final in December 2020 and the next ICC Prosecutor will take office on 15 June 2021 with a mandate of 9 years.
REACTIONS OF THE INTERNATIONAL COMMUNITY
Shock was the initial reaction of the majority of International criminal law observers as they were expecting several criminal law heavy-hitters to make it through, all the while recognizing the qualities and experience of the shortlisted.
Open letters have sprouted all over the globe and found their way to the ears of the Committee. African Organisations have notably expressed their dissatisfaction with the shortlisted candidates and consider that although they respond to essential requirements, other candidates were better seasoned. Several civil society organisations sent an open letter urging a vetting process that excludes candidates that commit, condone, or ignore sexual harassment. As a consequence, the Committee established a vetting process that included a number of checks while recognising the limits of such controls. The Committee therefore recommended the inclusion of special provisions in the future for the vetting of candidates with clearly outlined parameters, modalities and timing.
With regards to the tacit regional group rotating rule, many are expecting an Occidental candidate, considering that current ICC Prosecutor Fatou Bensouda is from Gambia (Africa) and her predecessor Luis Moreno Ocampo is from Argentina (South America).
This selection is crucial due to the significant role of the Prosecutor in measuring the purpose and weighing against impunity. The perception that criminals from “powerful countries” continue to escape the Court’s scope, investigations and charges is far from dying out. And it seems that ICC Prosecutor Fatou Bensouda did not completely manage to reconcile the Court with the African continent, which still sees the ICC as an instrument of Occidental justice.
LONG WAY TO GO FOR THE NEXT PROSECUTOR
Since the creation of the ICC in 1998, groundbreaking change in fighting impunity has been expected. The leader of this fight is arguably no other than the Chief Prosecutor. On top of the usual hardships international institutions have to grapple with such as efficiency and budget contributions, the challenges that the Court must face are numerous starting with its reach on accountability for atrocities and its ability to provide remedies for victims at last resort. The Court’s mandate is to seek justice for victims of genocide, war crimes and other atrocities. But only 123 States recognise its jurisdiction and some others are actively hindering its activity, raising the question of how far cases can actually go. This particularly transpires in factual situations.
In relation to the alleged deportation of Rohingya people in 2018, the Court explicitly ruled that it has jurisdiction when crimes start or end in a Member State. Yet the Trump administration recently imposed sanctions against ICC officials engaged in investigating or prosecuting possible war crimes perpetrated by American and Afghan forces in Afghanistan when Afghanistan has been party to the Rome Statute since May 2003 and the ICC was recently authorised to move forward with said investigation. Mirroring the aforesaid US reticence, China’s ruling communist party still refuses to acknowledge the draconian and inhumane treatments of its Uyghur Muslim minority and remains opposed to joining the Rome Statute. In the same spirit, although Palestine has recognized the Court’s jurisdiction and ICC Prosecutor Fatou Bensouda resolved that she had sufficient evidence to start an investigation, a number of States and stakeholders are still blocking the ICC from looking into the alleged crimes in the West Bank, East Jerusalem and Gaza Strip, by disputing the status of the territories.
In 2020, impunity is still a major concern that the ICC is trying to respond to, with the support of some States and often in spite of others. Alongside exemplary independence, prosecution, and diplomatic skills, the next ICC Prosecutor will need to be one with strong shoulders.
Inès is a lawyer-linguist currently working independently in the fields of translation and multilingual analysis. She studied in France and the UK (Sorbonne Law School, University of Sheffield, ISIT Paris) and holds an MA in International studies and sustainable development, a diploma in legal translation and an MA in Public International Law and International Administration. Passionate about climate justice and human rights, she wrote her thesis on the role of non-state actors in the governance of global public goods and a research paper on the links between conflicts and climate change. Before providing freelance services, Inès worked for a climate-protection-NGO, a communication agency and UNESCO’s Priority Africa and External Relations department.