ELECTING THE NEXT ICC PROSECUTOR: politics v. pragmatism

A prince should always seek advice, but only when he wishes and not when others wish. He must discourage everyone from offering advice unless he asks for it. However, he should inquire constantly, and listen patiently about those things of which he inquired… 

                                                                                           Machiavelli, The Prince

In The Prince – a masterful manual on realpolitik – Machiavelli advises leaders to avoid unsolicited advice, and instead, frequently ask for advice from trusted people and to listen to the advice given. Naturally, Niccolò Machiavelli violates this rule by offering unsolicited advice by way of The Prince – written to curry favor and perhaps secure a position from Lorenzo de’ Medici, ruler of Florence, Duke of Urbino.

Neither having prosecuted nor coveting a position in the Office of the Prosecutor (OTP) of the International Criminal Court (ICC), and bearing no gifts, I offer these musings to the powers that be who will elect the next ICC Prosecutor.

On 20 October 2020, Reuters reported an exclusive: that according to a diplomat who wished to remain anonymous, the ICC’s oversight body sent the States Parties a letter to inform them that “none of the four nominees had enough support” and proposed to “widen[] the search to include all 14 of the original candidates.”

This should have come as no surprise.

Not that the four candidates do not meet the basic qualifications; they do. But is that enough? Of the 10 other candidates, can it seriously be said that none of them – at least based on their qualifications on paper – deserved to have their name forwarded? No. Whether any of the omitted 10 deserve to ultimately be elected is another matter.

Omitting qualified candidates – especially candidates that have all the right stuff – deprived the States Parties of the possibility of electing a candidate that is perhaps the most qualified. It also raised the untended yet unavoidable specter that the fix was in. It would appear that in order to assist the election of a particular candidate the Committee on the Election of the Prosecutor had in mind (and perhaps privately preordained by some of the States Parties), strong candidates were discarded while stacking the short list with candidates of lesser distinction than the chosen one. I draw no conclusions, but untoward innuendo abound.

One name excluded from the final four was a shocker. Not that some of the other nine excluded candidates did not merit having their name forwarded. But none, in my opinion, was more merited to be on the final short list than Serge Brammertz, a former Prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY) and current Prosecutor of the International Residual Mechanism for Criminal Tribunals (IRMCT). Before I briefly set out my criteria for the best qualified candidate, a couple of disclaimers.

First, I know of Brammertz from my work at the ICTY and IRMCT. I have never had any professional (in the sense of directly engaging him in ICTY cases I was involved in) or social encounters with him. Hell, for years we’ve been working out at the same gym and we’ve never acknowledged each other, let alone exchanged words. So, I am neither pitching nor rooting for him. I just happen to think that he has the right stuff, and, at a minimum, his name should have been forwarded among the finalists. Excluding him, and frankly some of the others, was more than just a slight.

Second, being long in the tooth as a defence counsel, I have come to appreciate the need to have the prosecution led by a sound and experienced prosecutor who will temper the overzealous and press the timid among the ranks. It makes the proceedings less chaotic (and my job in representing my clients less frustrating) when the lead prosecutor is a solid, qualified, and experienced professional. Having a career prosecutor with a demonstrated record of excellence in performing many, if not all, of the tasks associated with the job, is ideal, if not indispensable.

Some context

It is no secret that since its creation, the ICC has underperformed. Understandable to some extent: the drafters and founders have bitten off a bit more than the ICC can chew as a judicial institution expected to cover the better part of the globe and eventually (so they aspire) exercise universal jurisdiction.

The ICC’s reputation has suffered in part because of the slow pace of cases and low number of convictions. But there are many other reasons. Most notably, there seems to be concerted attempts by some in the Chambers and the OTP, to expand the ICC’s jurisdictional boundaries beyond the strict letter of the Rome Statute and certainly beyond the likings of Non-States Parties. Arguably, this consternating issue is, in part, responsible for past US threats1  Trump’s Sanctions on International Court May Do Little Beyond Alienating Allies, The New York Times,  18 October 2020  and the recently imposed sanctions2   Executive Order on Blocking Property Of Certain Persons Associated With The International Criminal Court, National Security & Defence, 11 June 2020 in retaliation for probing into alleged war crimes by US troops in Afghanistan as is the US’s and other states’ reluctance to have any of their sovereignty placed in the hands of an “international” Prosecutor. A perception that the Prosecutor is going rogue3   Pompeo’s thuggish threats against the ICC: a Trumpian call or electioneering hyperbolic fodder?, 18 March 20194  Bolton threatens the International Criminal Court: gunboat diplomacy by other means, 17 September 2019 would invariably result from any investigations, however justified, of crimes alleged to have been committed by US forces or civilian authorities, even if sufficient rail guards were in place. Whether these concerns by Non-States Parties are meritorious or not (see here5   A Test for the US Posture on the Int’l Criminal Court: “Safe Harbor” Licenses?, by Beth Van Schaack, Justice in Conflict, 4 September 2020, for one of the many reactions to the US sanctions), they are real, toxic, and not to be trifled with. All the more reason why picking the next ICC Prosecutor must be based on qualifications and not the usual horse-trading politics. As one diplomat interviewed by Reuters put it:

“Its been a refrain from the U.S. that the ICC is not a judicial institution but a political one. It will haunt us for nine years if the decision of who will be the new prosecutor is a political one and not a merit based one.”6  Exclusive: Process to elect ICC war crimes prosecutor stalls amid U.S. sanctions, By Stephanie van den Berg Reuters, 20 October 2020 

The next pick

Despite a fair amount of unforced errors, judgment failings, and lackluster results during her tenure, (see my earlier posts7   Bensouda’s Folly: It depends upon what the meaning of the word “is” is, 19-10-2017Bensouda’s Decision to Investigate Afghanistan: milestone or diversion, 7-11-2017, Invoking the Interests of Justice: self-preservation or self-destruction,  18-04-2018,   The ICC-OTP’s Request For A Jurisdictional Ruling: bold move or timid half-step?, 25-04-2018, The Reversal of Bemba’s Conviction: what went wrong or right?, 19-06-2018,   Revisiting the ICC’s Ruling on the OTP’s Rohingya Request over Jurisdiction: a more critical look. Part 1 – The Majority’s Decision, 09-10-2018, What can ICC Prosecutor Bensouda learn from Special Counsel Mueller: Just because you can doesn’t mean you should, 01-04-2019 Philippinexit: Inevitable but inconsequential, 26-03-2019  ) Fatou Bensouda has done an adequate job. Having inherited a mess from her predecessor, Luis Moreno Ocampo8   The Moreno Ocampo identity: hubris abandoned, 04-10-2017Moreno Ocampo’s Game: and the sordidness keeps coming, 09-10-2017Moreno Ocampo’s Tacit Admission to Bensouda, 16-10-2017  and with some States Parties having buyer’s remorse after coming to grips with the fact that elected heads of state are not immune from prosecution while serving, Bensouda has made respectable gains in improving the OTP’s inner-workings and outer-image. But there is a way to go with no time to waste. Even more reason why the ICC cannot falter in not just picking Bensouda’s successor, but in making sure that the process is fair and transparent.

The next pick needs to be the right pick. Not the most popular, nor the most recognizable, nor the most connected (some have been known to globe-trot to lobby), and certainly not the most politically correct candidate picked primarily to satisfy a quota or to add balance – in spite of marginal qualifications.

Bluntly, the best candidate should be elected.

But what makes the best candidate?

For starters, the enormity of the job needs to be appreciated. The ICC Prosecutor’s job is the most demanding, most complex, and most multi-faceted job at the ICC. Not that being the President or the Registrar is easy, but by comparison with the functions of the OTP, there is no doubt in my mind that the ICC Prosecutor is expected to be an acrobatic plate-spinner on a high-wire without a safety net.

The ICC Prosecutor faces many more challenges than the chief prosecutors faced or are currently facing at any of the other international(ized) criminal tribunals and courts. Not that the early Prosecutors at the ICTY and International Criminal Tribunal for Rwanda had it easy. They started from virtually ground zero in setting up their offices, had to negotiate with various states to get their cooperation and assistance in arresting and turning over suspects and in gathering evidence, and so on. But these difficulties pale in comparison with those the ICC Prosecutor deals with on a day-to-day basis.

The list of the ICC Prosecutor’s functions is long and well-known. So, let me cut to the chase. The best ICC Prosecutor must have The Full Monty – a compliment of the following:

Prosecutorial Background  

  • Having a career prosecutor at the helm is better than having someone who dabbled a bit as a junior prosecutor before moving on to greener pastures. Hard working and dedicated line prosecutors in the trenches prefer to be led by careerist who come with a wealth of experience, knowledge, judgment, and an appreciation of the challenges prosecuting trial and appellate lawyers confront on a daily basis. A careerist is also more likely to have a commitment to the reputation and integrity of the institution.

Trial and Appellate Advocacy Skills

  • If the chief has no real trial and appellate experience, s/he is unlikely to appreciate the needs of the trial and appellate lawyers. These skills acquired only from practice are essential in making judgment calls on how a charge should be framed, whether the evidence is sufficient to charge, how to prioritize the resource, and much more. It is not necessary that the chief be a virtuoso (indeed, none come to mind), just as successful football managers need not have been stellar players (though several brilliant footballers who transitioned into outstanding managers come to mind). But knowing the job, soup to nuts, is invaluable.

Strong Strategic Thinking Skills

  • This ties into my earlier point. Unless the chief has practiced, considerably, s/he is unlikely to have developed the strategic thinking necessary in just about every decision the chief needs to make. Again, these are acquired skills, though it is not just about experience.

Exceptional Judgment

  • Tied into strategic thinking is judgment. Knowing which battles to pick, what resources to devote to which cases, which cases to pursue, charging decisions, how much delegation in decision-making to afford the staff, and more, all demand good judgment from the chief.

Significant Management / Administrative Experience

  • A good chief can neither micromanage nor be utterly hands-off. The OTP is a complex ICC organ. It can only be successful when led by someone who has extensive experience in administrating and managing prosecution offices of significant size and complexity. Seeing the big picture, appropriately delegating, maintaining constant vigilance in the details that matter, fostering a positive office culture, and much more, are essential tools that the chief must possess from the outset.

Thorough Appreciation of the Major Legal Traditions

  • Considering that the Rome Statute and the Rules are a hodgepodge of various legal traditions, it is advisable that the chief be familiar with the major legal traditions. Keep in mind that the judges are from various legal systems, many of whom have no knowledge of or feeling for legal systems beyond their own. The same goes for line prosecutors. Since the chief is going to have the ultimate significant say in who gets charged and for what, i.e., s/he should not take a laissez faire approach to investigating, charging, trying, and appealing cases. Having this knowledge coming into the job is highly useful.

Deep Understanding of all Applicable Laws (ICL, IHL, IHRL, etc.)

  • Unlike having an appreciation of the different legal systems, the chief must hit the ground running from day one when it comes to the applicable law. The procedural nuances can be picked up relatively quickly, but when it comes to the substantive law, the learning curve is steep. If the leader is to command respect from experienced line prosecutors, demonstrating an ignorance of the law from the outset will hardly instill confidence or enhance the esprit de corps.

Proven Leadership Skills

  • A proven track record of success as a chief prosecutor or someone near the top whose job included significant administrative and managerial tasks, is, by no means, a silver bullet for success. However, it is a measuring stick of sorts. One can grow into the job, but how ideal is it to have a chief learning how to lead and manage on the job?

Diplomatic Experience

  • Diplomacy is an essential part of the job. Diplomatic skills are also the sort of skills that one acquires – save for the few naturals. Having had prior experience with heads of state, the UN bodies, international organizations, etc., can be a major plus – especially in these troubled times when the ICC, and particularly the OTP, is under sustained criticism for all sorts of reasons.

Recognized Gravitas

  • This ties in with my previous point. The next ICC Prosecutor should have gravitas that is preferably internationally recognized. Slightly different from having a track record or possessing diplomatic skills. Possessing recognized gravitas from day one should not be undervalued. As mentioned, the next ICC Prosecutor needs to hit the ground running. To the extent that s/he is already a known quantity with preferably most if not all the above attributes, will go a long way in transitioning the OTP to a more productive and less contentious organ of the ICC.

Preferably fluent in more than just English or French

  • Considering the terms of reference for the ICC Prosecutor – a position which requires a fair amount of diplomatic shoulder-rubbing – it is useful for the chief to be fluent in English and French, as well as other languages. Lack of language skills should not be a deal-breaker for an otherwise most qualified candidate. But all things being equal with another candidate of similar distinction, the one with command of several languages other than English and/or French should enjoy a marginal advantage. Whether this should be the tipping point is debatable.

Restrained Ego 

  • Past is prologue, as they say. It is difficult to forecast whether a measured career prosecutor will not get enamored by the title, office trapping, diplomatic encounters, international travel, etc. Drunk from perceived power and the sound of his own press, Ocampo seemed to have lost his way, and in the process, wasted the enormous good-will upon which the ICC was founded. Bensouda has tried mightily to steady the ship and to get it back on course, while avoiding Ocampo’s grandstanding and pompous antics.

I don’t envy the next ICC Prosecutor. No poison chalice, but not a piece of cake either. The title may be august, but the tasks are Herculean. It will take a very skillful person to succeed as the next ICC Prosecutor. The States Parties cannot afford to get it wrong – time is running out for the ICC to grow into the mature judicial institution its founders envisaged.

I offer this unsolicited advice for what it’s worth to the princes and princesses who will meet in New York on 7 December 2020 to elect the next ICC Prosecutor. My advice is simple: consider all 14 candidates.

May the best candidate win.

Footnotes[+]

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

4 thoughts on “ELECTING THE NEXT ICC PROSECUTOR: politics v. pragmatism”

  1. I totally agree with the sentiments expressed. The countries put forward only the candidates who are within their political cadre. It is mind numbing how the weakest candidates are put forward. Political choice not legal.

  2. Interesting and compelling. But a big lesson is forgotten from the actual Florentian Maestro: Fortuna! Karnavas’ advices press too hard on framing next OtP incumbent’s expectations. So, it doesn’t allow room for actual “new blood,” as originally requested. Fortuna comes with new princes/ses, and it’s also part of the stakes and ICC-World history. Good luck!

  3. Dear Michael, it is rare but on this occasion I totally agree with you. A well written analysis, for good reasons without a written conclusion. However, written with the goal that the reader him/herself may come to the correct conclusion (a method I have learnt from the the late admirable leader of the SPD group in German Parliament, Herbert Wehner, back in 1992 in Bonn).
    Let me break or close your circle in the article: Knowing most of the 14 candidates myself, with all due respect, for me the best qualified person is Serge Brammertz, accurately described in the beginning. I know him as a prosecutor before arriving as a judge at ICTY and ICTR; at that time on the level of European cooperation in criminal matters. His performance at ICTY, ICTR, and UNRMICT is unique: decent, efficient, playing all the instruments of international cooperation in an unprecedented way,
    strong where necessary, always fair to counsels and judges (!), a clear standing without populist behaviour, in short: the unique upcoming chief prosecutor for the vulnerable ICC.
    We should be aware what is at stake: Nothing but the future of ICC. Its public and legal appearance depends on its leading figure, the prosecutor.
    Im am pretty sure: The late Prof. Cherif M. Bassiouni, for me the father of ICC, would have endorsed and fought for Serge Brammertz. May the Assembly of States act in Bassiouni’s and its own initial spirit courageously against all odds when it comes to the selection.
    The selection of a person of the lowest common denominator would mark the end of this bitterly needed legal institution!

    Judge (ret.) Wolfgang Schomburg

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