So, there you have it.
After months of waiting in anticipation, we now know that one of the following four individuals will become the next chief Prosecutor of the International Criminal Court (ICC):
- Morris A. Anyah (Nigeria), currently a trial attorney in the Law Office of Morris A. Anyah, LLC in Chicago, Illinois, U.S.A.
- Fergal Gaynor (Ireland), currently Reserve International Co-Prosecutor at the Extraordinary Chambers in the Courts of Cambodia;
- Susan Okalany (Uganda), currently a judge of the High Court of Uganda and a judge in the International Criminal Division of that Court; and
- Richard Roy (Canada), currently Senior General Counsel with the Public Prosecutor Service of Canada.
The immediate reaction to the list has been shock. That largely has to do with the fact that some international criminal law heavy-hitters were rumoured to be in the running – and they’re not on the list. As Patryk Labuda states, “none of the favourites made the cut”. Indeed, many qualified candidates applied for the post, undoubtedly making the process a better and richer one, but did not make the final cut.
The list is undoubtedly far from what the rumour mill and speculation would have led one to believe. Few of the so-called ‘favourites’ made the list, some for good reason. In the coming days and weeks one hot-top to be debated is whether the ICC needs fresh blood. For those that believe it does, this list may be a starting point.
Alexandra Lily Kather has said that the list had “no alarms” but some positive surprises. For ML Simms, it seems that the list brought together “fairly neutral candidates, persons without a huge footprint” in the international criminal law world.
Others may feel that while the Court could have used new blood, some of the candidates are simply too distant from the international criminal law world. That can come with its own downsides. Owiso Owiso observes, for example, that lesser known candidates will have their work cut out form them: “they probably have to ‘introduce’ themselves to a very unforgiving, impatient and insular [international criminal law] world. I don’t envy them.”
For yet others, their favoured candidate’s absence from the list will surely be a source of consternation.
The regional, gender, and legal system breakdown of applications for the ICC Prosecutor job can be seen in the chart below, and indicate that the largest group pf applications came from Africa and the ‘Western European and others group’. Just under 71% of applicants were male.
The list will no doubt take some digesting. In full disclosure, I only know anything substantive about the work of two of the four candidates, Gaynor and Okalany, although I know a bit about Mr. Roy’s work in Canada, on the SNC Lavalin case, about which I have previously written. A full report (update: now available here) on their qualifications and expertise will be forthcoming, permitting greater understanding of their backgrounds and abilities. On Twitter, Kevin Jon Heller has already begun posting some of that information. Hopefully the candidates will also engage transparently with civil society actors and speak to their abilities and visions for the ICC too (see below). What is particularly welcome about this process is that we now have the short-list and we, as a community, can start discussing and debating the merits of the candidates. The team that put the list together and the Assembly of States Parties should be commended for their transparency and the timeliness of the list’s release. Civil society organizations and observers of the Court wanted more transparency and a better chance to debate the candidates. They got it.
The panel that put together the list was right on time despite Covid-19’s monuments disruptions. While many of us don’t know much about all of the candidates, the fact that the list was released now gives us time – at least 4-5 months – to learn more about who they are, what makes them tick, why they think they deserve the job, and, crucially, where they stand on a host of pressing matters.
Some of those include, inter alia:
How would they respond to themselves, their staff, and possibly even their families being sanctioned by the United States?
How would they continue investigations in Afghanistan and support their staff?
What skills do they have that will help the Court stick-handle its way through the most challenging époque in its history, when it faces attacks from many quarters and is confronting major powers and their allies?
What will they do to foster goodwill among those African states and communities that have become concerned with the direction of the Court?
How will they address sexual harassment claims in their offices as and when they arise?
How will the candidates tackle sexual and gender-based violence crimes?
How will they strategically utilize the preliminary examination stage to effectuate some of the ICC’s goals (increased capacity of states to prosecute international crimes, deter atrocities, etc.)?
Are they open to reforming the Office of the Prosecutor?
What change do they think is most needed in the Office of the Prosecutor?
What are their abilities for managing a large body with many moving parts like the Office of the Prosecutor? What skills do they bring to the table that make them suitable to manage the Office?
Where do they think the ICC’s brand stands? What would they do to enhance it among the Court’s constituencies?
Do they consider themselves innovative? How would they innovate the Office of the Prosecutor?
By what means will they encourage states to engage with the ICC and cooperate with it?
How will they communicate with the wider public? Do they seem themselves as the potential ‘face’ of the ICC?
Which international crimes will they focus the Office’s energy on? Which do they think is most pressing today? Will they consider charging perpetrators of crimes related to the environment with crimes against humanity?
Will they exercise any form of discretion in situations where a negotiated resolution to a conflict is necessary?
How do they view the relationship between the ICC and the United Nations Security Council?
Of course, there are more questions to be answered, and I would be keen to hear from readers what they believe are the most important ones that candidates should respond to.
The next step is creating the fora to ask Prosecutors these questions. Following our joint symposium on the Next ICC Prosecutor with Opinio Juris, I hope that JiC can be part of that. Stay tuned.