Dear Foreign Minister:
As you know, efforts are currently underway to find the next prosecutor of the International Criminal Court (ICC). The current prosecutor’s non-renewable term expires in June 2012.
To facilitate the search process, last December the Bureau of the Assembly of States Parties (ASP) established a Search Committee to arrive at a consensus candidate, as mandated in an ASP resolution, in a “structured and transparent manner.”[i] The deadline for the submission of “expressions of interest”—meaning informal communications conveying the names of highly qualified individuals directly to the Search Committee—is September 9, 2011.
In keeping with this procedure, and in light of the upcoming deadline, we urge your government to communicate to the Search Committee such “expressions of interest” in a timely manner. This will ensure that the Search Committee can benefit from the deepest possible pool of highly qualified candidates in determining the short list for the Bureau’s consideration.
In assessing the qualifications of candidates, the Search Committee will be guided by the criteria in article 42(3) of the Rome Statute of the ICC, which states 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.”[ii]
Human Rights Watch supports a process that prioritizes merit over other considerations in deciding who should be the next ICC prosecutor. Indeed, this is essential given increasing demands on the ICC and the need to maintain the court’s independence and impartiality in the face of competing pressures on the world stage. For your reference, based on our close observation of the ICC and its Office of the Prosecutor over a number of years, earlier this year we outlined for the Search Committee other merit-based criteria we believe are relevant to assess the most qualified candidates for the job.[iii]
In this framework, of course, nothing prevents your government from submitting a formal nomination as outlined under the Rome Statute. Indeed, the Bureau-adopted Terms of Reference for the Search Committee expressly indicate that states parties can submit formal nominations, thus clarifying that its authority does not contradict or undermine the role of states as outlined in the Rome Statute. However, in keeping with the ASP’s preference to elect the next ICC prosecutor by consensus, states parties are “encouraged” to use the Search Committee process, “ideally for nomination and election.”[iv]
From a practical perspective, we share the view that proceeding informally through “expressions of interest” made directly to the Search Committee can help support a merit-driven process. Maintaining a level of informality at this stage in the search process helps to preserve an important distinction between the merit of individual candidates and the states that may (or may not) support them. This distinction creates space for a search process that prioritizes merit above other factors. This could also help to limit the all-too-familiar practice of campaigning and “vote trading” when it comes to high-level positions, where a state party seeks support for its candidate from other states parties in exchange for concessions. Such practices can engender the perception that the breadth of support by states parties trumps merit. There is a real risk is that this will create a “chilling effect,” where highly qualified candidates are effectively discouraged from making known their interest in the position, thus undermining efforts by the Search Committee to deepen the pool of meritorious candidates worthy of consideration.
Further, proceeding through informal “expressions of interest” means the Search Committee is better positioned to respect the confidentiality of applicants who wish to be considered.[v] This is particularly important, for instance, for those interested in the position but who do not wish to jeopardize their current jobs. We note that the ASP President has discouraged states from submitting formal nominations, and from engaging in campaign activities.[vi] To date, states parties have respected the process and have refrained from submitting formal nominations.[vii]
The Search Committee has made efforts to brief states on its progress, but we recognize that there are questions surrounding how the Search Committee will handle the challenges ahead. The Committee has the difficult task of balancing the tension between the need to respect the confidentiality of candidates against demands for transparency of the process. Given that the process as conveyed by the Search Committee represents an effort to break with “business as usual” when it comes to filling such a high-level post, some uncertainty is hardly surprising. Eventually, it will be worthwhile to conduct a “lessons learned” exercise to strengthen the search process for the future. To address some of the outstanding questions for a broader audience, for your information, we have prepared a brief “Questions and Answers” document about the Search Committee’s work thus far based on information available in the public domain (see https://www.hrw.org/news/2011/08/12/icc-qa-international-criminal-court-prosecutor-election-process). For our part, Human Rights Watch will continue to follow the Committee’s work and the challenges that emerge in the lead up to the election.
The Search Committee’s mandate represents a very valuable opportunity to ensure that merit drives the search for the next ICC prosecutor. There is simply too much at stake to do otherwise.
H.E. Mr. Christian Wenaweser, Permanent Representative of Liechtenstein to the United Nations and President of the Assembly of States Parties
H.R.H. Prince Zeid Ra’ad Zeid Al-Hussein, Permanent Representative of the Hashemite Kingdom of Jordan to the UN
H.E. Mr. Baso Sangqu, Permanent Representative of the Republic of South Africa to the UN
H.E. Mr. Miloš Koterec, Permanent Representative of the Slovak Republic to the UN
Mr. Joel Hernández García, Legal Adviser of the Ministry of Foreign Affairs of Mexico
Sir Daniel Bethlehem, Q.C., Former Legal Adviser to the Foreign and Commonwealth Office of the United Kingdom
[i]ASP, Bureau of the Assembly of States Parties, “Search Committee for the position of the Prosecutor of the International Criminal Court, Terms of Reference,” ICC-ASP/9/INF.2, December 6, 2010, http://www.icc-cpi.int/iccdocs/asp_docs/Elections/EP2011/ICC-ASP-9-INF.2-ENG.pdf (accessed August 11, 2011), para. 3 (“Terms of Reference”). See also ASP, "Procedure for the nomination and election of judges, the Prosecutor and Deputy Prosecutors of the International Criminal Court," ICC-ASP/3/Res.6, November 9, 2004, in Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, Third Session, The Hague, September 6-10, 2004, ICC-ASP/3/25,http://www.icc-cpi.int/NR/rdonlyres/EEF8F8E2-6AF9-47F7-859E-1C1AE1359ED3/140543/ICCASP325III_English.pdf(accessed August 11, 2011), Part III, p. 328, para. 33 (“ICC-ASP/3/Res.6, November 9, 2004”).
[ii]Terms of Reference, para. 5.
[iii]Letter from Human Rights Watch, International Federation for Human Rights, International Crisis Group, Open Society Justice Initiative and International Center for International Justice, to the Search Committee Members, March 18, 2011, https://www.hrw.org/sites/default/files/related_material/ICC%20prosecutor%20criteria%2003.16.11.pdf.
[iv]Terms of Reference, para. 3. See also ICC-ASP/3/Res.6 at para. 33.
[v]Terms of Reference, para. 8.
[vi]“Search Committee for the position of ICC Prosecutor: Statement by the President of the Assembly, Ambassador Christian Wenaweser,” International Criminal Court press release, ICC-ASP-20110722-PR203, July 22, 2011, http://www.icc-cpi.int/menus/asp/press%20releases/press%20releases%202011/asp-20110722-pr703 (accessed August 11, 2011).