{"id":6268,"date":"2026-07-27T03:48:36","date_gmt":"2026-07-27T01:48:36","guid":{"rendered":"https:\/\/michaelgkarnavas.net\/blog\/?p=6268"},"modified":"2026-07-27T03:48:37","modified_gmt":"2026-07-27T01:48:37","slug":"icc-prosecutor-selection-part-i","status":"publish","type":"post","link":"https:\/\/michaelgkarnavas.net\/blog\/2026\/07\/27\/icc-prosecutor-selection-part-i\/","title":{"rendered":"THE OFFICE BEFORE THE OFFICEHOLDER: Merit, Judgment, and Institutional Leadership – Part I of a Two-Part Series on Institutional Judgment and the Selection of the ICC Prosecutor"},"content":{"rendered":"

WHAT THE OFFICE REQUIRES: Judgment Before Power<\/em> <\/strong><\/p>\n

Before an institution entrusts power, it should first determine what qualities the responsible exercise of that power demands. <\/em><\/strong><\/p>\n

There are times when experience teaches us less by providing new answers than by revealing that we have been asking the wrong question.<\/p>\n

Several years ago, I wrote (here<\/a> and here<\/a>) 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.<\/p>\n

Looking back, however, I have come to think that I approached the matter from the wrong direction.<\/p>\n

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 \u2013 and the one that has occupied my thinking ever since \u2013 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\u2019s constitutive instrument, hence my use of the term \u201cconstitutional\u201d) and the immense responsibility that necessarily accompanies it.<\/p>\n

\u00a0That, I now believe, is<\/em> the real question.<\/p>\n

It is also the more enduring one. This will not be the ICC\u2019s 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\u2019s methods remain equal to today\u2019s challenges. Familiarity with a process is not, in itself, evidence of its wisdom.<\/p>\n

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.<\/p>\n

Orthodoxy deserves respect, but it does not deserve immunity from examination.<\/p>\n

If prior selection processes have produced capable officeholders, that should inspire confidence. If experience has revealed weaknesses \u2013 whether in institutional culture, governance, leadership, accountability, or the exercise of judgment \u2013 that experience should equally inform the next selection. Reflection is not criticism. It is the discipline through which mature institutions learn.<\/p>\n

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.<\/p>\n

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\u2019s conduct after appointment but also on the care with which the institution exercises its judgment before conferring that authority.<\/p>\n

The Office of the Prosecutor (OTP) confers authority, not judgment. Judgment must already exist. What, then, should an institution seek before entrusting such authority?<\/p>\n

Several years ago, I answered that question by compiling a list. I have no reason to abandon it.<\/p>\n

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.<\/p>\n

One quality, however, gives meaning to all the others. Judgment. Not brilliance. Not charisma. Not eloquence. Not even experience, standing alone. Judgment.<\/p>\n

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.<\/p>\n

\"\"<\/p>\n

Every significant decision entrusted to the Prosecutor is ultimately an exercise of judgment.<\/p>\n