POSTSCRIPT: ELECTING THE NEXT ICC PROSECUTOR

Silence becomes cowardice when occasion demands speaking out the whole truth and acting accordingly.                                                                                                                                                                           Mahatma Gandhi

In The 26-year hunt for Africa’s most wanted man, reported by Tom Wilson in the Financial Times (accessible through google), Serge Brammertz comes across as a combination of John le Carré’s George Smiley (methodically and strategically using spycraft with the help of European security agencies, Interpol, and the Rwanda’s National Public Prosecution Authority) and Michael Connelly’s LAPD Detective Hieronymus “Harry” Bosch (diligently working a cold case with patience, perseverance, and precision in tracking Félicien Kabuga, accused of organizing the Rwandan genocide). Kabuga was arrested on 16 May 2020 in a Paris suburb.

Before I get to the point of this postscript to my previous post on the election of the International Criminal Court Prosecutor (ICC), let me stress that Kabuga is presumed innocent of all charges against him, and beyond cavil is entitled to and must be afforded all of his fair trial rights. Being on the lam for 26 years is not evidence of his guilt, nor is his arrest. To this end, I unreservedly support his efforts to avail himself of all his rights through a robust and unapologetically vigorous defence.

Reading The 26-year hunt for Africa’s most wanted man – which I strongly urge those who will elect the next ICC Prosecutor to read – validates much of what I previously wrote. That is, what skills and experience a successful ICC Prosecutor must possess, and why the selection committee’s screening process was ineffectual.

Contrary to what one reader seemed to suggest in a tweet, I am not endorsing Serge Brammertz to be the next ICC Prosecutor. I don’t have a dog in this hunt. I am just a defence lawyer, well beyond the age of employment at the ICC’s Office of the Prosecutor, seeking neither position nor favor. Brammertz is however eminently, and in my opinion, indisputably qualified, ticking virtually all the qualification boxes I listed in my post. Other excluded candidates may also fall in this category.

But you may ask, why butt in – yet again? Simple. Reading this article not only validates what I previously posted, but further underscores the absurdity of the selection committee’s conclusion that Brammertz was unqualified to even be considered as a finalist. Not to speak out on this travesty seems cowardly.

We also see an unassuming yet sagacious diplomat at work.

In The 26-year hunt for Africa’s most wanted man, we see a seasoned career prosecutor possessing virtually all the qualifications and skills necessary for the ICC Prosecutor. Impressive is the judgment and strategic thinking he exercised, which, in my opinion, can only come from extensive hands-on experience where strategic and tactical thinking skills are honed. We also see an unassuming yet sagacious diplomat at work. The International Residual Mechanism for Criminal Tribunals has no police force; it must rely on the good will and cooperation of state agencies. This required finesse, knowledge, contacts, quiet persistence, and more. Having a track record and being a known quantity for professionalism and integrity also helped.

I agree with one reader who tweeted that the focus on the next ICC Prosecutor should have more “diplomatic/political/ leadership/strategic qualities,” as opposed to courtroom skills. I implicitly alluded to this when noting that virtuosity in trial and appellate advocacy skills was not necessary. But to be clear, judgment and strategic thinking comes from years of trial and appellate experience, part and parcel of which is appreciating how a case is properly and ethically investigated so that when the case goes to trial and appeal, the optimum result is achieved. And for what it’s worth, few advocates ever rise to the level of virtuosity (a category above excellence), and those who do, rarely covet the trappings and headaches of managing an office over the adrenaline highs of the courtroom.

Brammertz was not the only one overlooked and deemed unqualified to merit consideration by the States Parties. But reading this article on how Brammertz re-fashioned the investigation (I’ll not spoil by revealing), and if I may say, immodestly, knowing what I learned over the years about investigating, it bears repeating that it is astonishing that Brammertz, with his stellar credentials and impressive accomplishments, did not make the final cut. The exclusion of other qualified candidates is likewise baffling. Reasonable minds cannot but conclude that either the fix was in, or the members of the selection committee were not up to the task.

To be fair and decent to all those who excluded from the final-four, the States Parties should take the high road, seize control of the process, and interview all 14 candidates. The extra time and effort it will take to transparently elect the next ICC Prosecutor is well worth it.


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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.

One thought on “POSTSCRIPT: ELECTING THE NEXT ICC PROSECUTOR”

  1. Michael, I totally agree! We hope that Serge Brammertz does not , in light of the poor and discriminatory selection process, give in.
    He should know that his qualification dictates that he continues to stand candidate!

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