The Next ICC Prosecutor, a Symposium

Posted on April 8, 2020 by Mark Kersten

The following symposium was organized by: Kevin Jon Heller, Associate Professor of Public International Law at the University of Amsterdam and Professor of Law at the Australian National University; Patryk I. Labuda a Postdoctoral Scholar at the Fletcher School of Law and Diplomacy; Priya Pillai, a lawyer and international law consultant; and Mark Kersten, Senior Consultant at the Wayamo Foundation and creator of the blog Justice in Conflict

Quite naturally, the world’s attention has been focused on the terrible suffering created by the COVID-19 pandemic. Life, however, goes on – including at international institutions. The International Criminal Court (ICC) is a case in point: with Fatou Bensouda’s tenure as the second Prosecutor in the Court’s history coming to an end, the Assembly of States Parties (ASP) is gearing up to elect her successor. The deadline for applications closed last November, and the ASP-appointed Committee on the Election of the Prosecutor is scheduled to hold interviews on April 24. We should know who the leading candidates will be not long after that.

It is difficult to overstate the importance of the election. Even the ICC’s most enthusiastic supporters acknowledge that the Office of the Prosecutor (OTP) has struggled to conduct effective investigations and to mount convincing prosecutions. The choice of the next Prosecutor will have a profound effect on how well – or how poorly – the Court functions for the next eight years. Simply put: the ASP has to get this right.

To assist the Committee and the ASP, the four – Kevin Jon Heller, Mark Kersten, Patryk I. Labuda, and Priya Pillai– of us asked a wide variety of individuals who work in international criminal justice – scholars, practitioners, activists – to reflect on a number of questions concerning not only the choice of the next Prosecutor, but also how the next Prosecutor should think about his or her role:

  1. What is/should be the role of prosecutors in international criminal tribunals?
  2. How should the Prosecutor engage states parties and non-states parties?
  3. How, if at all, should the next Prosecutor confront major powers in the world?
  4. What role should the next Prosecutor play in reforming the OTP? / Court?
  5. What can and should the next Prosecutor do to improve the ICC’s investigation techniques?
  6. Should the next Prosecutor address the Africa-ICC relationship? If so, how?
  7. How do we assess the Prosecutor’s performance?
  8. What is your assessment of the first two ICC Prosecutor’s performance? What did Luis Moreno Ocampo and Fatou Bensouda get right/wrong?
  9. What methods do we use to hold the Prosecutor accountable for his/her performance?
  10. How should the next Prosecutor deal with the OTP’s ongoing preliminary examinations?
  11. How should the next Prosecutor deal with the OTP’s ongoing situations? Closing situations?
  12. What strategies should the next Prosecutor employ to strategically communicate with the Court’s constituencies (states, affected communities, interested observers, scholars, etc.)?
  13. How can the next ICC Prosecutor live up the Court’s promise to effectively investigate and prosecutor SGBV crimes?
  14. What is the procedure for selecting the next Prosecutor? Process, transparency and lessons learned from previous elections.
  15. Who should be the next Prosecutor? Desirable experience/background.

The result of our inquiries is a symposium that will run for the next 10 days at both Opinio Juris and Justice in Conflict. We will kick the joint symposium off tomorrow with posts by Luis Moreno-Ocampo, the first Prosecutor at the ICC, and by David Crane, the first Prosecutor at the Special Court for Sierra Leone. We will then publish a number of posts each day next week, some at Opinio Juris and others at Justice in Conflict. We encourage readers to read the posts at both blogs – and to tell us what you think!

Posts in the symposium so far:

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About Mark Kersten

Mark Kersten is an Assistant Professor in the Criminology and Criminal Justice Department at the University of the Fraser Valley in British Columbia, Canada, and a Senior Consultant at the Wayamo Foundation in Berlin, Germany. Mark is the founder of the blog Justice in Conflict and author of the book, published by Oxford University Press, by the same name. He holds an MSc and PhD in International Relations from the London School of Economics and a BA (Hons) from the University of Guelph. Mark has previously been a Research Associate at the Refugee Law Project in Uganda, and as researcher at Justice Africa and Lawyers for Justice in Libya in London. He has taught courses on genocide studies, the politics of international law, transitional justice, diplomacy, and conflict and peace studies at the London School of Economics, SOAS, and University of Toronto. Mark’s research has appeared in numerous academic fora as well as in media publications such as The Globe and Mail, Al Jazeera, BBC, Foreign Policy, the CBC, Toronto Star, and The Washington Post. He has a passion for gardening, reading, hockey (on ice), date nights, late nights, Lego, and creating time for loved ones.
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