By Lisa Clifford
November 7, 2011
The race for the court’s top job began in earnest on October 25 when the search committee charged with producing a short list of potential prosecutors announced its results. Included were ICC deputy prosecutor Fatou Bensouda; Andrew Cayley, the co-prosecutor at the Extraordinary Chambers in the Courts of Cambodia; Mohamed Chande Othman, the chief justice of Tanzania; and Robert Petit, counsel in the Crimes Against Humanity and War Crimes Section of the Canadian department of justice.
Interest in the post was high with 52 people on the original list of candidates, including some women, though the gender diversity wasn’t as great as had been hoped, according to a report from the committee which met in New York in mid-October to interview eight candidates.
Secret ballot
Moreno Ocampo’s successor is to be chosen in December at the annual meeting of the members of the ICC, the Assembly of States Parties. The ASP will attempt to elect the prosecutor either by consensus or, if that proves unsuccessful, by secret ballot requiring an absolute majority.
Though he welcomes the fact that that the short list has been made public, Amnesty International’s legal advisor on international justice has “concerns” about the process that has been established to find a consensus candidate.
“The informal process risks taking the focus away from identifying the highest qualified candidate to agreeing on the most popular candidate,” said Jonathan O’Donohue.
“Unless consensus can easily be found on one candidate who stands out to states parties as the most highly qualified, then a contested election should proceed to elect a prosecutor by an absolute majority of the members of the Assembly of States Parties (as provided in the Rome Statute) rather than forcing consensus.”
William Pace, convenor of the Coalition for the International Criminal Court (CICC), wants more information on how the short list was developed.
“Now that the names of contenders for next prosecutor have been published, we call upon the search committee to elucidate how these candidates were identified in order to ensure full confidence in the process as well as the final selection,” said Pace.
The new prosecutor will take up the job in June 2012, along with six new judges and other top court officials.
High moral character
Guiding the search process was Article 42 of the Rome Statute stating that the prosecutor must be a person of “high moral character, be highly competent in and have extensive practical experience in the prosecution or trial of criminal cases ... [and] have an excellent knowledge of and be fluent in at least one of the working languages of the court.”
However, there is a fear among court observers that politics may come into play when ASP members are making the final decision.
African
There has been strong pressure in some quarters for the replacement to Moreno Ocampo to be an African as the Hague-based court’s entire current docket involves defendants from the continent. The newest case is from north Africa, Libya, and in early October judges granted permission for the prosecutor to look into the situation in Côte d’Ivoire.
“A chief prosecutor from Africa would help to fight some perception issues before the court such as 'the court is targeting Africa only’," said Joyce Freda Apio, coordinator of the Uganda Coalition for the International Criminal Court.
Others, however, hope that both the selection process – and the reign of the new prosecutor –
will be independent and free of such political considerations.
“We need a prosecutor who is seen in the eyes of the court and the eyes of affected communities as impartial,” said Chris Ongom, the coordinator of the Uganda Victims Foundation, urging the new prosecutor to avoid the pitfalls of politics.
“I see these views across Africa. They think the prosecutor should really be seen to be independent, so the prosecutor who is coming should look at the issue of impartiality, independence and non-political approach during investigations.”
Too close
In Uganda, in particular, accusations that he was manipulated by President Yoweri Museveni have dogged Moreno Ocampo. Speculation that the court and the Ugandan president were too close began early on at the joint press conference he held with Museveni announcing the investigation in Uganda. Victims have also complained that the ICC has focused entirely on the Lord’s Resistance Army and ignored crimes committed by the Ugandan army.
Bensouda – deputy ICC prosecutor since 2004 and Gambia’s former attorney general and minister of justice – is a leading candidate. She would prove less open to political manipulations than her predecessor, according to Phil Clark, a lecturer in international politics at the School of Oriental and African Studies at the University of London.
“Many African elites have found that you can do business with Ocampo,” said Clark. “Sometimes he has been politically naive, and they’ve been able to negotiate their own terms with him. With Bensouda it is less clear that she would be open to manipulation by African leaders, because she is politically savvier in the African environment.”
Crucial
This changing of the guard comes at a crucial time for the ICC which has faced criticism about its slow pace, heavy focus on African war crimes and lack of completed trials.
The court’s first ever case, against Thomas Lubanga from the Democratic Republic of Congo, recently concluded though no verdict has yet been delivered. The trial, which once came close to collapse and then heard allegations that prosecution witnesses had lied, lasted more than two years. Lubanga has been in custody for five.
