In December 2020, the Assembly of States Parties (ASP) of the International Criminal Court (ICC) will elect a new prosecutor to serve for a nine-year term. The vacancy announcement, which was published in early August, identifies the main duties and responsibilities of the position, as well as the required qualifications and experience.

According to the announcement, the successful candidate will have extensive and proven practical experience, in particular as a prosecutor, in the investigations, trials, and appeals of complex criminal cases. The role requires a record of independence and impartiality and commitment to upholding justice, accountability, human rights, and gender equality; demonstrated management and leadership experience; and an in-depth knowledge of national or international criminal law and procedure, international humanitarian law, and public international law.

Interested individuals have until the end of October 2019 to submit their applications confidentially via ICC’s online recruitment system. The Committee on the Election of the Prosecutor, established by the Bureau of the ASP and assisted by a panel of independent experts, will then determine the candidates to be interviewed. Following the establishment of the shortlist, the Bureau will inform the States Parties accordingly, inviting them to nominate, endorse, or support candidates from the shortlist for election by the ASP.

Background

The elected candidate will become the third prosecutor of the ICC. The position was first filled by Argentine lawyer Luis Moreno Ocampo in 2003. Elected with 78 votes with no abstentions and no votes against, Ocampo was the only official candidate during the second resumption of the first session of the ASP in New York. During his term, Ocampo opened investigations in seven situations: Uganda, Democratic Republic of Congo, Central African Republic (CAR), Darfur (Sudan), Kenya, Libya, and Cote d’Ivoire.

In 2012, Gambian lawyer Fatou Bensouda, who at the time served as the deputy prosecutor of the ICC, succeeded Ocampo. Prior to Bensouda’s election, the Bureau established a search committee that received 51 communications for the position of the prosecutor. From the 51 names on the list, the committee interviewed eight candidates and, with a view to nominate a consensus candidate through an informal consultation process, presented to the Bureau a shortlist of four candidates from The Gambia, United Kingdom, Tanzania, and Canada.

The consultations resulted in a general agreement [pdf] that the next prosecutor should come from Africa. This was largely because all of the seven situations that the ICC has been dealing with at the time were from Africa. In the end, the States Parties agreed to have a consensus candidate, Bensouda, for the consideration by the ASP. Accordingly, Bensouda was nominated by The Gambia and her nomination was cosponsored by 66 States Parties. She was then elected by acclamation and began her term in 2012.

During the first two years of Bensouda’s term, governments of Mali and CAR (for the second time) referred their situations to the ICC, triggering opening of investigations into the situation of Mali in 2013 and CAR II in 2014.  By the end of 2014, the court had nine active situations, all from African states. This reinforced the ICC’s earlier criticism of being an inefficient, neo-colonial, Western institution targeting only African states. Later this criticism grew to the point that several states began to threaten to withdraw from the court’s jurisdiction, lobbying the African Union to adopt a strategy for collective withdrawal.

Situation in Georgia

In these circumstances, opening an investigation outside Africa was essential for the ICC to reinvigorate its original image of a court for all people, dedicated to end impunity worldwide. Indeed, in October 2015, Bensouda submitted a request to ICC judges for authorization to open an investigation into the situation in Georgia. The matter refers to the international armed conflict in between Georgia and Russia in the breakaway region of South Ossetia. Some commentators have referred to the conflict [pdf] as the first European war of the 21st century.

In January 2016, Pre-Trial Chamber I authorized the opening of an investigation into the situation in Georgia. The investigation focuses on crimes against humanity of murder, forcible transfer of population, and persecution, and war crimes, including attacks against the civilian population, wilful killing, intentionally directing attacks against peacekeepers, destruction of property, and pillaging allegedly committed in the context of the conflict in Georgia between July 1 and October 10, 2008.

This was the first time the ICC stepped into a new region with a purpose to investigate crimes committed during an international armed conflict. Notably, in investigating Russia, it was also the first time that the court confronted alleged crimes committed by a permanent member of the UN Security Council that is not a party to the Rome Statute.

While trying to improve the court’s image, Bensouda moved into the new region completely unprepared. She and her office were unfamiliar to the Georgian and Russian contexts. Most of the court officials involved with the situation did not know much about the local and regional history, culture, or general state of affairs. More concerning, the Office of the Prosecutor (OTP) came without a strategy and vision on how to handle the specific challenges of Georgia’s situation. There was initially some hope that Russia would cooperate with the ICC investigation, but this was dashed by the end of 2016 when the country withdrew its signature from the Rome Statute.

It has been over 11 years since the conflict and almost four years since the opening of the ICC investigation. During this time, many victims in Georgia have passed away, thousands of displaced people are living in dire conditions, and civilians across the administrative boundary line (ABL) are living in fear due to regular kidnappings and continued occupation of the Georgian territories. Families of the lost ones and remaining victims are losing hope that they will ever get justice.

There is a general concern among ethnic Georgian victims that the ICC might not be able to hold alleged perpetrators accountable because Russia does not cooperate with the investigation. Bensouda has not commented much on the status of the investigation, and due to the confidential nature of the work of the OTP, it is not clear how it is progressing. There are no (publicly known) warrants of arrest that have been issued against perpetrators.

While Bensouda still has one more year to show the results of the investigation, it is clear that this period will not be sufficient to conclude any proceedings. Therefore, it will be for the next prosecutor to deal with the first and, so far, the only non-African situation.

Challenges Facing the Next Prosecutor

The next ICC prosecutor will have a hard task to ensure that the investigated crimes in Georgia represent key aspects of victimization, especially with regard to crimes against humanity of forcible transfer and persecution of ethnic Georgians, and war crimes of attacks against the civilian population, wilful killing, destruction of property, and pillaging. More importantly, the new prosecutor will face the challenge of executing potential arrest warrants to ensure the detention of the alleged perpetrators who are the most responsible for the commission of the alleged crimes.

There is also a need to combat misinformation about the court’s mandate and investigation in Georgia. The need for timely and comprehensive interactions with the affected communities and broader public was revealed in the context of 2018 presidential elections, when Georgian politicians traded accusations about who was responsible for the 2008 armed conflict with Russia and improperly influencing the ICC’s investigation. These political debates could have a detrimental effect on the victims’ effective involvement in the investigation or on their future cooperation with the court. It is essential that the next prosecutor, as leader of the OTP, sufficiently responds to prevent an information vacuum that could be taken advantage of by political actors.

These are not easy tasks, and their implementation will determine the future of the ICC. As the first investigation outside Africa involving an international conflict and a powerful, non-member state, Georgia is a test case that will set an example for a range of other countries that consider the ICC a means to achieve justice.

The election of the next prosecutor will mark a new era for the OTP and for the ICC at large. The court is now more international, dealing with issues that are more complex and with more powerful, as well as more unfriendly, states. It will be of utmost importance that the next prosecutor is completely independent from global players, while at the same time experienced in dealing with powerful states. The strategies put in place by the next prosecutor may be the best and only chance for Georgians to have some measure of justice.

Nika Jeiranashvili is the Executive Director of Justice International and previously worked with victims of the 2008 conflict in Georgia. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative.