Part II — THE DISCIPLINE OF CHOOSING: Toward a Forensic Method of Institutional Judgment
The Office confers authority, not judgment; judgment must already exist.
Part I argued that before an institution entrusts extraordinary constitutional authority, it must first determine what qualities the Office of the Prosecutor (OTP) requires and whether the available evidence justifies confidence that those qualities genuinely exist in the individual seeking to occupy it. Part II asks the next question: How should a mature institution reach that judgment?
Not how should it identify an impressive candidate. Not how should it reward a distinguished career. Not how should it reconcile political, regional, or diplomatic considerations. Important though those considerations may be, they are secondary. The central inquiry is evidentiary: What should persuade an institution that one individual, rather than another, should be entrusted with extraordinary constitutional authority?
Institutions do not appoint ideals. They entrust authority to people. Their responsibility is neither to identify perfection nor to select, in some abstract sense, “the best” candidate. Such conclusions inevitably reflect differing views of excellence, experience, personality, or leadership. Reasonable people will disagree. Rather, through disciplined inquiry, the institution must satisfy itself that the available evidence reasonably and confidently supports the conclusion that the individual it will select possesses the judgment, character, temperament, leadership, executive ability, and moral authority necessary to exercise extraordinary public power responsibly over time.
That is not an aspirational conclusion. It is an evidentiary one. The objective is therefore not merely to select an impressive candidate but to reach a conclusion that can be justified by disciplined reasoning. That is what institutional legitimacy requires.
Perhaps this is where years spent practicing law shape my habits of thought. Lawyers are trained to distrust conclusions resting primarily on impressions. Courts do not decide because a witness appears sincere. Prosecutors do not indict because allegations sound persuasive. Appellate courts do not affirm discretionary decisions because they feel correct. Law demands more. It requires reasons. More precisely, it requires reasons that can withstand scrutiny.
Appointment committees should apply the same standard. They should not merely conclude that a candidate inspires confidence. They should be able to explain why that confidence is justified – not in the language of instinct or enthusiasm, but in the language of evidence.
There is a reason courts write judgments. The discipline of explanation compels the examination of assumptions, the testing of impressions, the consideration of competing explanations, and the anchoring of conclusions in identifiable facts rather than in intuition. Institutions entrusted with selecting constitutional officeholders should expect no less of themselves.
Professional lives leave evidence. So do judgment, leadership, and integrity. So do arrogance, abuse of authority, and the mistreatment of others. The task is not to speculate about character. It is to recognize the traces that character leaves over the course of a professional life.
Lawyers understand this almost instinctively. We rarely evaluate another advocate by asking whether he or she is intelligent. Intelligence reveals surprisingly little. Nor do we begin with reputation, however distinguished. Reputation deserves respect, but it is not evidence. Instead, we ask different questions.
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- How does counsel respond when a carefully prepared cross-examination begins unexpectedly to unravel?
- How does a prosecutor react when exculpatory evidence suddenly emerges?
- How does a judge manage an unforeseen development that no one anticipated?
- Does pressure produce clarity or rigidity? Reflection or defensiveness? Restraint or impulse?
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Pressure reveals what routine competence conceals.
Over the years, I have had the privilege of appearing before exceptional judges and against exceptional prosecutors. I have also appeared before some who were considerably less exceptional. The distinction almost never lay in intelligence. Many possessed formidable intellects. Nor did it usually lie in legal knowledge. Most had that in abundance. The difference almost always appeared in a less conspicuous place. It appeared in judgment.
Some listened before deciding. Others seemed to decide before listening. Some distinguished the institution’s interests from their own. Others occasionally confused the two. Some exercised authority quietly, without feeling obliged to remind others of it. Others seemed to believe authority required continual demonstration. None of these qualities appear on a curriculum vitae. Yet each profoundly influences the quality of justice an institution delivers. Professional accomplishment tells us what someone has achieved. Judgment tells us how authority will likely be exercised.
For constitutional office, where authority is conferred by election rather than earned through appointment or private achievement, the more important question is how a mature institution should recognize it before authority is entrusted. If judgment is the indispensable quality – and I believe it is – that is the real question.
Legal knowledge can be examined. Professional experience can be measured. Academic accomplishment can be documented. Judgment is different. It cannot be inferred from a curriculum vitae. Nor can it be reliably assessed, even in the most carefully prepared interview.
Interviews undoubtedly have their place. They allow appointment committees to assess communication, composure, intellectual agility, and perhaps temperament. When properly conducted, they may reveal flashes of insight or expose superficiality. But they also have inherent limitations.
Candidates know they are being evaluated. They prepare. They anticipate predictable questions and refine their answers. The more experienced the candidate, the more polished those answers are likely to be. That should surprise no one.
Lawyers prepare witnesses every day. Good advocates do not simply ask important questions; they anticipate the answers long before they are given. Experienced candidates – particularly those who have held senior office – understand exactly what appointment committees hope to hear:
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- Integrity
- Independence
- Leadership
- Transparency
- Collegiality
- Vision
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Few sensible candidates will volunteer the opposite. There is nothing improper about that. It is simply human nature. The difficulty is that carefully prepared answers reveal preparation, not necessarily judgment. For that reason, committees should resist the temptation to mistake eloquence for insight, confidence for reflection, or certainty for wisdom. Indeed, the more polished the interview, the greater the need to probe beneath the surface.
The objective is not to catch candidates off guard, nor is it to reward those who happen to perform best in interviews. It is to understand how they think when confronted with uncertainty, competing obligations, imperfect information, and decisions for which no answer is entirely satisfactory. That requires a different kind of inquiry.
Rather than inviting candidates merely to describe their strengths, appointment committees should ask them to grapple with realistic institutional problems. Not abstract questions of legal doctrine. Not opportunities to recite familiar principles. But situations that demand judgment under genuine institutional pressure. Questions about:
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- Scarce investigative resources
- Conflicting institutional priorities
- Credible allegations against senior officials
- Diplomatic pressure from powerful States
- Disclosure failures discovered midway through trial
- A prosecution that is legally sustainable but strategically unwise
- A politically popular investigation that the available evidence simply cannot support.
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Such questions resist rehearsed answers. There may be several defensible responses. What matters is not the conclusion alone but the reasoning behind it.
Law schools have relied on the Socratic method for generations for precisely this reason. Its purpose is not to discover the “correct” answer but to reveal how a person thinks. Initial answers invite further questions, assumptions are tested, and competing principles collide. Gradually, one begins to understand not merely what a person believes but how that person reasons.
Appointment committees should draw more confidently on that tradition. Every candidate should confront the same foundational hypotheticals, providing a common basis for comparison. But genuinely probing interviews must also evolve in response to the answers given.
If a candidate repeatedly invokes institutional independence without explaining how dissent within the OTP would be protected, that omission warrants scrutiny. If another speaks eloquently about managerial reform yet has overseen unusually high staff turnover, the committee should ask why. If transparency is presented as a defining principle, the committee should ask how that commitment was demonstrated during internal controversies.
That is neither unfair nor adversarial. It is disciplined inquiry. Every experienced cross-examiner knows that the most revealing questions are seldom the ones prepared before the witness enters the courtroom. They arise from careful listening.
Even the most thorough interview, however, should never bear the primary burden of the appointment process. Professional lives are too long, and public responsibilities are too important. The interview should generate hypotheses – not conclusions. Its purpose is to identify the questions the institution must investigate before authority is entrusted. That is where constitutional due diligence begins.
My own answer is informed less by appointment procedures than by years spent investigating cases. Investigations cultivate a particular discipline of mind. One learns quickly that answers are rarely the end of inquiry. More often, they are its beginning. Credible assertions require corroboration. Alternative explanations must be explored. Patterns must be distinguished from isolated events. The object is neither confirmation nor contradiction. It is understanding.
I see no persuasive reason for institutions to abandon that discipline when deciding whom to entrust with extraordinary constitutional authority. If anything, the responsibility is even greater. The decision will shape not only a single investigation or prosecution but also an institution’s culture, credibility, and the confidence ultimately placed in it by those it serves.
Appointment committees should therefore think less like recruitment panels and more like careful investigators conducting constitutional due diligence. I deliberately use that term because it encompasses far more than conventional background checks. Traditional vetting often asks whether disqualifying information exists. Constitutional due diligence asks a different question: What does the totality of this person’s professional life reveal about how authority has been exercised?
Answering that question requires three distinct forms of evidence.
The first is self-generated evidence: the curriculum vitae, written submissions, publications, interviews, strategic vision, public presentations, and answers given during the appointment process. All deserve careful consideration. None should be accepted uncritically.
The second is historical evidence: the professional record accumulated over an entire career. The decisions made. The investigations opened—or declined. The judgments written. The appeals pursued or abandoned. The crises confronted. The reforms undertaken. Professional accomplishments reveal what a candidate has done. Professional decisions reveal how that candidate exercises judgment.
The third is independent evidence. Often, this is the most revealing. It consists of information obtained independently of the candidate: confidential interviews, contemporaneous records, performance evaluations, professional correspondence, institutional reports, exit interviews, and the experiences of colleagues, subordinates, supervisors, and professional peers. No single source is conclusive, and each may have its own limitations or biases. Taken together, however, they frequently reveal patterns that no interview can uncover.
Courts rarely reach important conclusions based on a single piece of evidence. Appointment committees should exercise no less discipline when recommending the individual who will exercise extraordinary constitutional authority. Accordingly, the inquiry should extend beyond technical competence. It should examine judgment, leadership, temperament, professional relationships, respect for institutional boundaries, the treatment of colleagues, workplace decorum, the response to criticism, and the willingness to reconsider one’s assumptions and to be accountable.
If the objective is not merely to identify reasons for rejecting a candidate but to establish affirmative grounds for institutional confidence, the committee must examine the candidate’s professional life – not merely the curriculum vitae, which reveals where a person has served but rarely how authority was exercised. That is the more important question.
Character seldom announces itself. It reveals itself through patterns that emerge over a professional life. Appointment committees should therefore distinguish isolated incidents from recurring conduct. One complaint proves little. Neither does one glowing reference. Institutional judgment requires a patient search for consistent patterns across independent sources.
Recent experience has taught international institutions a lesson that can no longer be ignored. Too often, discussions of appointments focus almost exclusively on legal ability, prosecutorial experience, diplomatic skill, or managerial competence. Each matters. None is sufficient. The Rome Statute itself requires candidates for its highest offices to possess “high moral character”.((The Assembly of States Parties has, over successive elections, refined aspects of its selection procedures, including the establishment of advisory committees, public hearings, expanded consultations, and consensus-building mechanisms. Those developments reflect a genuine effort to strengthen the appointment process. They also underscore a different point. Procedural refinement alone cannot answer the more fundamental constitutional question explored in this series: by what disciplined method should an institution determine whether a candidate has actually demonstrated the qualities required by Article 42(3) of the Rome Statute over the course of a professional life? See Bureau of the Assembly of States Parties, Election of the Prosecutor – Way Forward (13 November 2020), para. 4(g), directing consultations “to assess if the candidates under consideration fulfil the criteria stipulated in Article 42(3) of the Rome Statute, with a special focus on the high moral character of the candidates.” The Bureau further emphasized that all candidates should be subjected to the same level and type of scrutiny (paras. 2–4). That proposition is entirely consistent with the broader argument advanced here: that confidence in constitutional office should rest on disciplined, evidence-based institutional judgment rather than reputation or interview performance alone. Those words deserve to be taken seriously, not merely as ceremonial.))
Moral character is not demonstrated merely by the absence of criminality, nor is it exhausted by personal honesty. It is revealed, above all, in the exercise of authority over other human beings. How leaders treat those who depend on them professionally may reveal more about constitutional fitness than almost any other aspect of their professional lives.
This is especially true when the evidence involves bullying, retaliation, abuse of supervisory authority, sexual harassment, coercive conduct, or the exploitation of professional dependence for personal purposes. Such conduct is too often dismissed as a workplace issue or an unfortunate personnel matter. It is neither. It is evidence of how a prospective officeholder understands power itself.
The issue is not private morality; it’s the public exercise of entrusted authority.
A person who repeatedly humiliates subordinates, retaliates against those who raise legitimate concerns, exploits differences in institutional rank, sends sexually suggestive communications to junior staff, seeks private meetings under transparently implausible professional pretexts, or mistakes entrusted authority for personal privilege has already revealed something profoundly relevant to constitutional office.
These are not questions of etiquette. They concern the responsible exercise of entrusted authority.
For that reason, appointment committees should adopt a genuine zero-tolerance policy toward abuse of authority. Zero tolerance, however, must never be confused with zero due process. It means zero tolerance for failing to investigate. Every credible allegation deserves a careful, confidential, independent, and professionally conducted examination. Neither automatic belief nor automatic disbelief satisfies an institution’s constitutional responsibility. Disciplined inquiry does.
Institutional due diligence should therefore extend well beyond conventional background checks. The objective is not merely to confirm dates of employment, publications, professional appointments, judgments, cases prosecuted, or academic distinctions. Those matters are comparatively easy to verify. The more difficult – and constitutionally significant – question is whether the totality of a candidate’s professional life warrants entrusting that individual with extraordinary public authority.
Professional distinction deserves respect, but it does not confer immunity from scrutiny. Reputation is relevant evidence, but standing alone it can never justify entrusting extraordinary constitutional authority. That requires evidence of judgment.
Appointment committees should therefore examine not only what candidates have accomplished but also how those accomplishments were achieved; how difficult decisions were made; how disagreement was managed; how authority was exercised; how failures were acknowledged; how subordinates were treated; and how institutional priorities were determined when legal obligations, political expectations, and practical realities collided. Leadership is experienced, not merely described.
That inquiry cannot rely exclusively on supervisors, distinguished colleagues, or references selected by the candidate. Leadership looks different depending on where one stands within an institution. Peers see one perspective. Superiors see another. Those who work directly under a leader often see something entirely different. None possesses a monopoly on truth. Together, their experiences may reveal patterns that no interview could ever uncover.
Professional lives also leave documentary traces. Internal memoranda. Performance evaluations. Promotion recommendations. Exit interviews. Management assessments. Formal complaints. Informal correspondence. Electronic communications. None of these should be treated as determinative. Equally, none should be ignored simply because they are uncomfortable. The institution’s responsibility is neither to avoid difficult evidence nor to seize upon it uncritically. Its responsibility is to evaluate it fairly.
When documentary material or independent accounts raise legitimate questions about the exercise of authority, appointment committees should raise those matters directly with the candidate. Not as accusations. Not as cross-examination. But as part of a serious inquiry into constitutional fitness. Candidates should be invited to explain the decisions they made, the language they used, the conduct attributed to them, and the institutional context in which those events occurred.
Questions of that kind are not unfair; they are necessary.
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- What was intended?
- Why were those communications sent?
- How was the professional relationship understood?
- How was the imbalance of institutional authority appreciated?
- What explanation is offered for conduct that others experienced as coercive, intimidating, humiliating, or inappropriate?
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These are not accusatory questions. They are constitutional questions. A candidate truly deserving of extraordinary public trust should welcome the chance to answer them. An institution worthy of public confidence should be willing to ask them.
The OTP presents an additional constitutional dimension. Unlike most constitutional officeholders, the Prosecutor exercises extraordinarily broad discretion not only over how investigations are conducted but also over whether to undertake them at all. That discretion lies at the heart of the Rome Statute and carries responsibilities unlike those of almost any other office in international justice.
Not every atrocity can be investigated. Not every investigation can realistically culminate in arrest and trial. Resources, evidence, State cooperation, and time are finite. The Prosecutor’s constitutional responsibility is therefore not merely to determine whether crimes appear to have been committed, but to determine where the ICC’s limited resources can most realistically achieve justice.
Judgment therefore consists not merely of deciding whether crimes appear to have been committed. It consists of deciding where the institution should invest its finite investigative and prosecutorial capacity. Good prosecutorial judgment requires disciplined realism. Before committing years of investigative effort and substantial institutional resources, there should be a reasonable evidentiary basis for believing that meaningful investigative progress is achievable and a realistic prospect that those most responsible may ultimately be brought before the ICC.
No prosecutor can guarantee arrests. Much depends on the cooperation of States, political circumstances, and events beyond the ICC’s control. But there is an important distinction between accepting unavoidable uncertainty and disregarding foreseeable reality. Constitutional judgment lies in recognizing that difference.
Hope is not strategy. Symbolism is not prosecutorial policy. The ICC exists to administer justice, not merely to issue pronouncements. Every investigation necessarily entails a decision not to investigate another situation. Every allocation of scarce resources is also an allocation away from another victim community, another investigation, and another opportunity for accountability. For that reason, prosecutorial discretion is among the greatest powers entrusted by the Rome Statute. It is also among the least susceptible to later correction.
Appointment committees should therefore examine not only the legal decisions candidates have made but also the judgment reflected in the choices that shaped their professional lives. Which matters did they pursue? Which did they decline? How did they prioritize limited resources? How did they balance legal principle with practical reality? When faced with competing institutional obligations, what guided their decisions? These questions reveal not merely legal competence but constitutional judgment.
The inquiry ultimately returns to a single question: Does the candidate’s professional life, taken as a whole, justify entrusting that individual with extraordinary constitutional authority?
The interview contributes to that assessment. Professional achievements contribute to it. Reputation contributes to it. None is sufficient on its own. Assertions require corroboration. Impressions require verification. Individual accounts require comparison with independent sources. Isolated incidents must be distinguished from recurring patterns. Only then should conclusions be drawn.
That is not suspicion. It is institutional judgment. It is the same intellectual discipline lawyers apply every day when evaluating evidence. Appointment committees should hold themselves to no less of a standard when deciding who should exercise some of the most consequential powers conferred by the Rome Statute.
Yet the principles developed in this two-part series extend well beyond the forthcoming election of an ICC Prosecutor. Every constitutional institution eventually confronts the same question. Whether selecting judges, prosecutors, registrars, commissioners, inspectors general, ombuds, or other independent officeholders, the underlying question remains the same: How should an institution determine whether an individual may safely be entrusted with extraordinary public authority?
Reputation alone cannot answer that question. Nor can political acceptability. Nor can regional balance, however important representative legitimacy may be in international institutions. Nor can eloquence, ambition, academic distinction, professional prominence, or the understandable desire to reward a distinguished career. Each may inform the assessment; none can substitute for it.
Before authority is entrusted, a mature institution must, through disciplined, independent, rigorous, and intellectually honest inquiry, satisfy itself that the individual before it has already demonstrated the judgment, character, independence, restraint, and leadership that the OTP demands. That responsibility is constitutional because no other professional appointment entrusts comparable public authority. Once entrusted, authority cannot be easily recalled. Its consequences extend far beyond the individual who temporarily exercises it. Every significant decision made by a Prosecutor, Judge, Registrar, or other constitutional officeholder ultimately shapes not only individual cases but also public confidence in the institution.
The decision to appoint is therefore an exercise of constitutional judgment.
For a brief moment, appointment committees become custodians of the institution’s constitutional future. Their task is not merely to fill a vacancy. It is to determine whether the confidence they are about to place in another human being has been earned. Their obligation is therefore not merely administrative. It is constitutional. It is fiduciary. For a time, they hold in trust the confidence of the States that created the institution, the victims who seek justice before it, the accused whose rights depend on its fairness, the professionals who will serve within it, and the public whose trust ultimately sustains its legitimacy.
That confidence deserves more than optimism. It deserves evidence and disciplined inquiry. Above all, it deserves the courage to ask difficult questions before authority is entrusted, rather than after confidence has been betrayed.
Ultimately, that is the central argument of this two-part series.
Part I argued that before an institution entrusts extraordinary constitutional authority, it must first determine which qualities the OTP requires. Identifying those qualities is merely the first step. Part II has suggested that the more difficult task is to determine, through disciplined inquiry, whether those qualities have been demonstrated over a professional life.
Neither part proposes a particular candidate. Neither assumes that institutional judgment can eliminate risk. Institutional judgment can reduce risk; it can never eliminate it. Human beings remain fallible. Institutions therefore owe themselves the discipline of making the best judgment the available evidence permits. They are judged not only by the decisions their officeholders make after appointment, but also by the care, independence, and judgment they exercised before authority was entrusted to them.
Institutions ultimately become what they are willing to tolerate. They also become what they choose to trust. The first exercise of constitutional judgment occurs not by the officeholder after appointment, but by the institution before authority is entrusted. If that judgment is careful, independent, and evidence-based, the institution begins well. If not, no subsequent exercise of authority can fully repair what was overlooked at the outset.
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