WHAT THE OFFICE REQUIRES: Judgment Before Power
Before an institution entrusts power, it should first determine what qualities the responsible exercise of that power demands.
There are times when experience teaches us less by providing new answers than by revealing that we have been asking the wrong question.
Several years ago, I wrote (here and here) about the election of the Prosecutor of the International Criminal Court (ICC). My purpose then was straightforward. I sought to identify the qualities the next Prosecutor should possess. Drawing on decades of experience before national and international courts and tribunals, I compiled what I regarded as the essential attributes of an effective chief prosecutor: extensive prosecutorial experience, sound judgment, strategic thinking, leadership, management, diplomacy, professional gravitas, legal knowledge, and, not least, a restrained ego. I continue to believe those qualities remain indispensable.
Looking back, however, I have come to think that I approached the matter from the wrong direction.
The difficulty was never in identifying the desirable qualities. Reasonable people are unlikely to disagree that integrity is preferable to vanity, judgment to impulsiveness, leadership to bureaucracy, or experience to improvisation. The more difficult question – and the one that has occupied my thinking ever since – is how an institution should verify that those qualities genuinely exist before entrusting an elected officeholder with the extraordinary constitutional authority conferred by the Rome Statute (the ICC’s constitutive instrument, hence my use of the term “constitutional”) and the immense responsibility that necessarily accompanies it.
That, I now believe, is the real question.
It is also the more enduring one. This will not be the ICC’s first election of a Prosecutor. It will be its fourth. That simple fact should matter. Mature institutions, like mature legal systems, are expected to learn from experience. They revisit settled assumptions, refine procedures, and ask whether yesterday’s methods remain equal to today’s challenges. Familiarity with a process is not, in itself, evidence of its wisdom.
Lawyers recognize this instinctively. Much of legal development consists not of discovering new principles but of recognizing that familiar questions have been framed too narrowly. Good appellate advocacy often begins by challenging the premise underlying an argument. Institutions should possess the same intellectual humility.
Orthodoxy deserves respect, but it does not deserve immunity from examination.
If prior selection processes have produced capable officeholders, that should inspire confidence. If experience has revealed weaknesses – whether in institutional culture, governance, leadership, accountability, or the exercise of judgment – that experience should equally inform the next selection. Reflection is not criticism. It is the discipline through which mature institutions learn.
The question, therefore, is not simply who should become the next Prosecutor. Nor, for that matter, is it who should become the next Judge, Registrar, or holder of any constitutional office entrusted with the independent exercise of public authority. The more fundamental question is whether the institution has sufficient reason to entrust extraordinary constitutional authority to a particular individual.
That distinction matters. Power acquired through elections remains power entrusted by those who elect. The legitimacy of the office therefore depends not only on the officeholder’s conduct after appointment but also on the care with which the institution exercises its judgment before conferring that authority.
The Office of the Prosecutor (OTP) confers authority, not judgment. Judgment must already exist. What, then, should an institution seek before entrusting such authority?
Several years ago, I answered that question by compiling a list. I have no reason to abandon it.
Experience remains indispensable. So do leadership, strategic thinking, professional competence, integrity, management, diplomacy, and the ability to inspire confidence within and beyond the institution. Each remains as relevant today as when I first wrote about them. But experience has also persuaded me that these qualities are not of equal constitutional significance.
One quality, however, gives meaning to all the others. Judgment. Not brilliance. Not charisma. Not eloquence. Not even experience, standing alone. Judgment.
Experience without judgment may produce confidence unsupported by wisdom. Leadership without judgment risks becoming personality. Strategic thinking without judgment can devolve into cleverness unrestrained by principle. Even integrity, indispensable though it is, cannot by itself answer the difficult institutional questions that inevitably arise when law, policy, finite resources, diplomacy, and human consequences converge.
Every significant decision entrusted to the Prosecutor is ultimately an exercise of judgment.
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- Whether to open an investigation.
- Whether the available evidence justifies seeking an arrest warrant.
- Whether scarce investigative resources should be devoted to one situation rather than another.
- Whether the interests of justice genuinely favor proceeding.
- Whether sufficient evidence exists to confirm charges.
- Whether a prosecution should continue when the evidentiary picture changes.
- Whether an appeal should be pursued.
- Whether institutional credibility is strengthened by speaking publicly or better served by remaining silent.
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None of these decisions can be resolved by consulting a checklist. Each requires judgment informed by experience, disciplined by principle, and exercised with an acute awareness that every decision carries consequences that extend well beyond the immediate case. That, perhaps more than anything else, explains why selecting a Prosecutor differs fundamentally from recruiting an accomplished advocate or appointing an experienced administrator.
The Prosecutor is not merely expected to make decisions. The Prosecutor is entrusted with making sound decisions when none of the available choices is entirely satisfactory. That distinction is often overlooked.
Lawyers understand that difficult cases rarely present as contests between right and wrong. More often, they require choosing among competing obligations, imperfect evidence, finite resources, conflicting institutional interests, and legitimate disagreement among thoughtful professionals. The exercise of judgment lies precisely in navigating those uncertainties.
Judgment cannot be measured by the number of trials conducted, speeches delivered, books published, or conferences attended. Nor does it necessarily reveal itself in a carefully prepared interview. Judgment is demonstrated over time. It emerges from decisions made under pressure, from priorities set when resources are limited, from the willingness to reconsider one’s assumptions when circumstances change, and from the quiet discipline of resisting the temptation to substitute certainty where only reasoned confidence is possible.
For those of us who have spent our professional lives in courtrooms, this is hardly a novel proposition. Every trial lawyer eventually learns that advocacy is not merely about mastering legal doctrine or developing eloquence. It is about making hundreds of judgments – often with incomplete information and under relentless pressure – each capable of influencing a case’s course.
The same is true – indeed, even more so – of institutional leadership where the stakes are considerably higher.
The Prosecutor’s decisions shape not only individual prosecutions but also the OTP’s reputation, victims’ confidence, the morale of those who work within the institution, States’ willingness to cooperate, and ultimately public confidence in the ICC’s capacity to administer justice fairly and independently. The OTP confers authority. Only judgment determines whether that authority will be exercised wisely.
If judgment is the indispensable quality, it does not follow that judgment alone is sufficient.
The Prosecutor is not simply the ICC’s most senior advocate, nor merely the chief legal officer responsible for deciding which cases should proceed. The OTP carries responsibilities that extend well beyond the courtroom. It leads one of the ICC’s principal organs and a large multidisciplinary institution composed of professionals from diverse legal traditions, professional cultures, and national backgrounds. It must formulate institutional priorities, allocate finite resources, maintain morale, preserve professional standards, and engage with States, victims, international organizations, and civil society, while remaining fiercely protective of its independence from each.
In many respects, the position resembles that of the chief executive of a large multinational organization as much as it does that of a traditional prosecutor. That comparison is not intended to diminish the legal character of the OTP. Quite the opposite. It is intended to recognize the breadth of responsibilities entrusted to the individual who holds it.
Leadership, therefore, cannot be reduced to holding the highest office on the organizational chart. Titles establish hierarchy. Leadership builds confidence. The distinction is profound. A well-managed office may function efficiently. A well-led office fosters confidence in its mission, pride in its work, and trust in those who exercise authority. Those qualities cannot be created by administrative directives, strategic plans, or organizational charts. They are earned through example.
The most effective institutional leaders rarely lead by reminding others of their authority. They lead by demonstrating the judgment with which they exercise it. That observation has practical consequences. The Prosecutor will inevitably inherit an OTP composed of exceptionally talented professionals. Some will possess greater expertise than the Prosecutor in specific fields. Others will disagree – sometimes vigorously – with strategic decisions, charging policies, investigative priorities, or legal positions. Healthy institutions expect such disagreement. Indeed, they benefit from it.
The challenge for leadership is not to eliminate disagreement. It is to foster a professional culture where disagreement improves decision-making rather than discouraging it. That requires confidence without arrogance. Authority without intimidation. Accountability without humiliation. Humility without indecision.
These are not merely desirable management techniques. They are constitutional virtues. The authority entrusted to the Prosecutor extends well beyond prosecutorial discretion. Every significant personnel decision, every promotion, every allocation of resources, every response to internal conflict, and every decision to encourage or suppress debate helps shape the OTP’s institutional character long after any individual case has concluded.
Institutional culture is never accidental. It reflects the accumulated exercise of leadership.
Recent experience has shown, sometimes painfully, that even institutions founded on the highest ideals remain vulnerable to failures in leadership, organizational culture, and the abuse of authority. Credible allegations of workplace bullying, harassment, abuse of authority, retaliation, and professional misconduct – whether substantiated or not – carry consequences that extend far beyond the individuals immediately involved. They affect morale. They influence recruitment and retention. They shape public confidence. Most importantly, they determine whether those entrusted with exercising public authority believe the institution embodies the values it seeks to uphold.
Justice cannot demand dignity in the courtroom while tolerating indignity in the workplace. Nor should institutional culture be dismissed as an internal administrative matter somehow separate from the ICC’s constitutional mission. It is part of that mission. How people are led inevitably influences how justice is administered. For that reason, leadership must be part of the appointment inquiry, not simply whether a candidate has managed a large office.
The relevant questions are practical rather than abstract.
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- How were disagreements handled?
- How were younger lawyers mentored?
- How were failures addressed?
- How was authority exercised?
- How was confidence earned?
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Those questions are neither peripheral nor personal. They go directly to constitutional fitness. The OTP confers administrative authority as readily as prosecutorial authority. Both demand the same thing: judgment exercised through principled leadership.
Another lesson that years of advocacy have taught me is that lawyers are trained to distinguish between evidence and inference. An impressive curriculum vitae is evidence of professional achievement, not of judgment. An eloquent interview may demonstrate intelligence, preparation, and communication, but it does not necessarily reveal how a candidate will exercise authority when confronted with uncertainty, institutional crisis, competing obligations, or political pressure.
Reputation has its place. So do references. So does professional recognition. Each contributes to the assessment. None, individually or collectively, establishes constitutional fitness. This is because the qualities most essential to constitutional office are often the most difficult to observe directly. Judgment seldom announces itself. Humility rarely advertises itself. Integrity is not demonstrated merely by describing it. Leadership cannot be measured by title alone.
Experienced candidates will naturally arrive well prepared. They will have anticipated obvious questions and refined their answers with trusted colleagues. There is nothing improper about that. It is exactly what good advocates do. But it suggests that interviews, while necessary, should be regarded as one source of information rather than the principal basis for entrusting constitutional authority.
The objective is therefore not to identify perfection, nor even to determine who appears most impressive. It is to reduce institutional risk by acquiring sufficient reason to conclude that the person entrusted with extraordinary authority has already demonstrated the judgment the OTP requires.
Courts do not require absolute certainty before rendering judgment. They require evidence sufficient to support reasoned confidence that the applicable standard of proof has been met. Institutions entrusted with selecting constitutional officeholders should likewise insist that confidence be grounded in evidence rather than in intuition.
If all of this is correct, the conversation changes.
The question is no longer which candidate appears most accomplished, enjoys the strongest reputation, commands the broadest diplomatic support, or hails from the region whose turn has seemingly arrived. Those considerations may all have their place. None, however, should displace the central inquiry: Has the institution acquired sufficient reason to entrust extraordinary constitutional authority to this individual?
It is a more demanding question because it shifts the inquiry from admiration to assessment, from reputation to evidence, and from aspiration to demonstrated judgment.
No appointment process can eliminate risk. Human beings are more complex than curricula vitae, interviews, references, or public reputations. The objective is therefore not to identify perfection, nor even to select the person who appears to be “the best.” The more realistic and ultimately more responsible objective is to reduce institutional risk by identifying, through disciplined inquiry, the candidate most likely to exercise entrusted authority with judgment, integrity, humility, independence, and the capacity to lead an institution through both ordinary times and institutional crisis. That is not settling for less. It is recognizing the institution’s true responsibility.
This, in turn, requires a different approach to appointments. The challenge is no longer simply identifying the qualities the OTP requires. It is determining, through disciplined inquiry, whether those qualities have already been demonstrated throughout a professional career.
The difficulty, of course, is that none of this answers the practical questions.
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- If judgment is the quality that matters most, how should it be evaluated?
- If leadership is indispensable, how should it be assessed?
- If moral character is constitutionally significant, what evidence should an institution require before concluding that the confidence it proposes to place in a candidate is justified?
- And if experience teaches that interviews, however valuable, reveal only part of the picture, what should supplement them?
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Those are not questions about candidates. They are questions about institutional process. They are also, I believe, the questions the Assembly of States Parties should now be asking, not simply because it will soon elect a Prosecutor and several judges, but because every constitutional office within the ICC demands the same qualities of judgment, integrity, independence, restraint, and respect for the proper exercise of entrusted authority. Mature institutions strengthen themselves by examining not only whom they choose but also how they choose.
Every appointment to a constitutional office involves two exercises of judgment. The first belongs to the individual ultimately selected. The second – and logically prior – belongs to the institution that decides to entrust that individual with extraordinary authority. The quality of the first often reflects the quality of the second. That is why these questions merit more than a passing reflection. They merit a process equal to the authority the OTP commands.
The OTP will ultimately test the judgment of its holder. The appointment process first tests the judgment of the institution. Institutions are remembered not only for the decisions their officeholders make, but also for the judgment they exercised in deciding whom to trust to make them.
The qualities that justify entrusting constitutional authority do not vary by office. Whether selecting a Prosecutor, a Judge, or a Registrar, the essential inquiry remains the same: Has this individual demonstrated the judgment, character, independence, and restraint the Office demands?
If those are indeed the qualities that matter most, a practical question inevitably follows: How should a mature institution determine whether they actually exist before authority is entrusted?
That is the question I turn to in Part II.
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