Over the next several months, the International Criminal Court will undergo its most significant leadership transition since coming into existence in 2002.
This December, the court’s governing body—the Assembly of States Parties—will select a new prosecutor (Luis Moreno-Ocampo, the first prosecutor, must step down in 2012 after a nine-year term of office) and six new judges (out of a total of 18). Early next year, elections will be held among the judges for the court’s next president and two vice presidents. In 2013, the judges will also select a new registrar, the court’s chief administrator. These changes happen as the ICC is completing its first trials. Together, they offer a major challenge and a significant opportunity for this still-young institution to deliver on its promise of ending impunity for grave crimes.
Unfortunately, the same governments that elect these officials regularly treat the court as a political football—embracing it when it suits their interests, bargaining it away for other aims when it doesn’t. Though the UN Security Council has referred crises like Darfur and Libya to the court when it needed to appear tough, it has then failed to support, or even downplayed, the ICC when its actions—like the indictment of a head of state—are seen at odds with changing political goals. This lack of commitment towards the ICC weakens it. Nowhere is this more evident than in the selection of its senior officers.
Many capable and committed persons have staffed international courts over the years. And yet, it is no secret that there have been glaring exceptions. Judges with little or no trial experience—including at least one who lacked a law degree—have allowed proceedings to drag on, devoted unnecessary time to frivolous arguments, made legally unfounded rulings, and let some defendants misuse the courtroom as a platform for political speeches. On occasion, judges have fallen asleep during proceedings, and even, in one notorious case at an international tribunal addressing crimes in Rwanda, were seen laughing during testimony by a rape victim.
Such lapses not only impair the integrity of the trial in question. They also diminish public trust in these institutions, and in the overarching struggle for the rule of law.
Prior contests for judicial office at international courts have been marred by political horse trading among sponsoring states. The ICC selection process was supposed to mark an improvement—with stricter qualifications for office, more transparency, and emphasis on merit over connections. But the experience so far has been mixed.
The elections this December offer a chance to do better. Perhaps no choice is more important than that of prosecutor, the public face of the court. The leading candidate, many believe, is the current deputy prosecutor, Fatou Bensouda, a respected former attorney general from The Gambia. This June, Bensouda received the formal endorsement of the African Union. If in the end Bensouda is chosen, she and the ICC will be stronger if her election is seen to be founded upon her genuine strengths—prosecutorial experience; sound judgment; a commitment to, and skill at, engaging both victims and the wider public in the court’s work—rather than a pay-off to any state or group of states.
The next prosecutor and new judges will inherit a full docket of complex cases, outstanding arrest warrants for leaders from Sudan’s Bashir to Libya’s Qaddafi, and pressure from financially strapped governments to do more with less. Perhaps most challenging, the court must overcome perceptions that Africa has been singled out for scrutiny while abuses by Western leaders get a free pass. Only by adhering to the highest standards of professional conduct may court officials win sufficient legitimacy over time to persuade the major powers presently outside the current ICC system—including China, India, Russia and the US—to join.
In these circumstances, the importance of choosing only the most competent candidates cannot be overstated. The court’s mission, and the hopes that victims place in it, are too important to be subjected to cynical back room deals.
Between now and December, when the Assembly of States Parties convenes in New York, diplomats will be tested. Governments must put aside their parochial interests for the larger aim of building an institution to serve all humanity.
James A. Goldston is Executive Director of the Open Society Justice Initiative.
The are two, let us say, “sets” of problems.
1.
One is the individual qualification of judges. Is candidate so-and-so really as good as she or he should be, for one of the world’s foremost courts? This is what Goldston addresses here summarily by the term “merit”. The ICC’s benches houses brilliant jurists (Ekaterina Trendafilova) as well churlish, irascible egocentrics (Sir Adrian Fulford).
Some candidates were promoted there by merits. Others were given a golden handshaken and whisked away. Some were bartered in for colour and geographical concerns, not for quality. A judge like the Kenyan Joyce Aluoch was throughout her professional life a stooge and reliable lackey of an authoritarian, at times dictatorial government, who always faithfully judicated as it was demanded from her; the Italian (more precisely South Tyrolean) Cuno Tarfusser, longtime prosecutor, was the near contrary.
2.
But the real problem is my eyes is deeper one. And Goldston did not address it in his article because he was PART of this very problem.
The real problem is that much of the ICC staff (on the bench and in OTP, and among defence lawyers) has been recruited from former ICTY and ICTR personnel, and that is is a major jeopardy. Countless procedural blunders and misassessments of ICC procedure are already due to this legacy; lawyers ciontinue to project their Common Law framework / education and unquestioned assumptions upon a procedure that is largely (and fundamentally) based on Civil Law traditions and standards, and only overlaid with some Common Law veneers.
Only with time, the dogmatically superior Civil Law traditions inside ICC will root, and become stronger. Let us hope that the next batch of promotions duly strengthens them.
You have raised very key issues and i humbly hope that merit will rule justice is colour-blind black or white or even red bring it on.