International Criminal Court: The Upcoming Election of Its Prosecutor

This coming December the Assembly of States Parties of the International Criminal Court (ICC) will also elect a new Prosecutor for a single term of nine years.[1]

The Prosecutor is in charge of the management and administration of the Office of the Prosecutor (OTP). That Office is “responsible for receiving referrals and any substantiated information on crimes within the jurisdiction of the Court, for examining them and for conducting investigations and prosecutions before the Court.”[2]

The Rome Statute sets forth the following necessary personal qualifications for the Prosecutor:

• “High moral character;”
• “Highly competent in and . . . extensive practical experience in the prosecution or trial of criminal cases;” and
• Excellent knowledge of, and fluency in, one of the Court’s two “working languages” (English and French). [3]

Note that there is no requirement that the Prosecutor come from one of the Court’s States Parties. As a result, technically a U.S. citizen with the above qualifications would be eligible for election to this position, but given the history of the U.S. relationship with the Court and the global involvement of the U.S., most observers think it highly unlikely that a U.S. citizen could be, or should be, chosen for this job.

Six international human rights NGOs have advanced recommended selection criteria for the next ICC Prosecutor. Their doing so was in the context of what they saw as the challenges facing the ICC and its Prosecutor. The ICC’s work is done in a highly politicized international environment. The Prosecutor has to prioritize investigations and prosecutions to advance the Court’s goals, including victims’ right to justice. The Prosecutor must direct a diverse group of highly qualified people in a wide variety of complex and specialized tasks in the OTP. The Prosecutor must make trials relevant and meaningful for affected communities. The Prosecutor must promote complementarity, i.e.,  national investigations and prosecutions of crimes within the ICC’s jurisdiction. The Prosecutor must cooperate with other organs of the ICC to continue to build the institution.[4]

With all of these challenges in mind, Human Rights Watch (HRW) and the other five NGOs recommended the following criteria for selecting the next ICC Prosecutor in addition to the individual’s meeting the statutory requirements:

1. Demonstrated experience of professional excellence in complex criminal cases. This is most important since the primary role of the Prosecutor is to conduct factually provable and legally sound prosecutions and trials. Former judges may meet this criterion too.
2. Demonstrated ability to act with independence and impartiality in the exercise of professional duties. This criterion requires demonstrated experience with, or an understanding of, international relations and other institutions relevant to the work of the OTP.
3. Demonstrated professional excellence in institutional mangament. The Prosecutor must also develop a positive work environment in a multi-cultural environment. Delegation and supervision have to be balanced.
4. Demonstrated experience in working with other bodies or agencies to achieve a common goal. This involves resolving disputes or tensions.
5. Demonstrated experience in communicating effectively to a wide variety of constituencies.[5]

HRW also has made suggestions regarding the OTP’s “preliminary examinations” of possible situations for possible investigation by the OTP. More can be done by the OTP in these examinations, says HRW, to encourage national authorities to undertake investigations and prosecutions of possible crimes. One way to do this, according to HRW, is for the OTP to issue interim reports on the status of such examinations. This is consistent with the Rome Statute’s desire to promote “complementarity.”[6]

Just this year the ICC has been asked to shoulder more burdens with the U.N. Security Council’s referral of the current situation in Libya to the ICC.[7] Thus, it is critically important to the world for the ICC to be strengthened in every way, including the election of a fully qualified new Prosecutor.