Short Lists and Long Lists: Choosing the Next ICC Prosecutor

The term of the current prosecutor of the International Criminal Court, Fatou Bensouda, expires in June 2021. Yet the work of selecting the next prosecutor of the International Criminal Court appears to be at a standstill, at least for the moment. Keen court observers Mark Kersten and Kevin Jon Heller yesterday exchanged views on the status of deliberations. The situation appears to be the following: a committee appointed by the ICC member states drew up a short list of four candidates for consideration. Those on the short list were:

• Morris A. Anyah (Nigeria)

• Fergal Gaynor (Ireland)

• Susan Okalany (Uganda)

• Richard Roy (Canada)

That list did not include certain individuals who had been thought of as leading contenders when the process began. Notable omitted names included Serge Brammertz, the Belgian prosecutor of the international mechanism for Balkans war crimes. Karim Khan, a British lawyer involved in international efforts to prosecute ISIL crimes, also did not make the list. Displeased by these and other omissions, several important ICC members are resisting the formation of consensus around any of the short-list candidates.

The question now is whether and how the existing selection process will change. Any ICC member state has the right at any point to bring forward additional candidates, but states understandably prefer to keep the process as collaborative as possible. And that would entail the court members agreeing as a whole to expand the short list, something that a few states remain hesitant to do. Deliberations at this point are behind the scenes, but it is hard to imagine that an expanded list of possible candidates won’t appear very soon. The ICC is in a precarious position, and the next prosecutor will face consequential decisions soon after assuming office. A broader pool of candidates to consider cannot be a bad thing.