David M. Crane, Founding Chief Prosecutor of the Special Court for Sierra Leone, discusses the need for the new ICC Prosecutor to have a foundation in international law particularly the prosecution of atrocities...
Recently the committee mandated to draw up a list of candidates to be Prosecutor of the International Criminal Court (ICC) and reported out to the Assembly of States Parties on 30 June the list of candidates to be considered. The report is comprehensive as to its procedures and methodologies. Buried in the report is a statement that there is no candidate that is “perfect”. Indeed.
Modern international criminal law has been around for over twenty-five years. During this time we have seen various courts and tribunals work diligently to bring justice to victims of atrocity. The international community in those days stood behind this “age of accountability” that drifted away recently, consumed by a retrenchment from international law and values, the world retreating into a miasma of nationalism and populism. That “age of accountability” became for all intents and purposes an “age of the strongmen”, the likes of which we have not seen since the 1920s/1930s.
With all this effort during that “age of accountability,” we created solid jurisprudence, workable rules of evidence and procedure, and a cadre of experienced prosecutors, investigators, registrars, and support staff…25 years worth of hard-won/fought experience in the trenches. This time around in selecting the third Prosecutor of the ICC, we had a number of former international Prosecutors who had served in the trenches. They had tasted, touched, smelled the horror of atrocity, and had proven themselves that they could prosecute at the international level. At no time has the ICC needed that experience more than now. Alas, they did not even make the cut.
An effective prosecutor at the international level must be many things to succeed. Of course, a strong background in law is imperative. In some ways in selecting an international prosecutor, it is largely a given. Today proven ability to practice law at the international level must be paramount. Additionally, a prosecutor must be both an experienced diplomat and savvy politician in order to create political and diplomatic support for a court and to seek justice for the victims of an atrocity (something the UN and the ICC tend to forget). As I have stated publicly, “It is a naive Chief Prosecutor that does not factor diplomacy and politics into a prosecutorial strategy”. It proved very effective in West Africa.
A prosecutor must also be both a manager and a proven leader, someone who commands respect by principled action and long term experience. A prosecutor at the international level must have served in those trenches, getting their hands “dirty” so to speak in order to lead. Though one can learn management skills, leaders are born. Known leaders are manifest in their abilities and careers. Good leaders rise to the top based on their experience and merit. Those who work in the ICC need to be led by a Prosecutor, not spend their time teaching a new Prosecutor about their job. We have come too far to go back to the beginning.
The current list of candidates to be Prosecutor of the ICC, though generally having distinguished domestic careers, largely have not served in the trenches in atrocity zones. They are not “perfect” candidates to be sure. This is disconcerting at many levels. The new Prosecutor of the ICC must command immediate respect and have the international stature that is lacking in these proposed candidates.
The ICC is languishing for many reasons. This court is a worthy and important institution that has the laudable goal of seeking justice for victims of the gravest of crimes and is to be nurtured and supported by all right-thinking nations who believe in the rule of law. Its record, however, is causing pause, and its long term inability to think through the political and diplomatic ramifications of its actions has hurt its stature. We need a strong and dynamic ICC respected, listened to, and admired…particularly in this “age of the strongman”. A largely unknown and inexperienced lawyer on the international stage as the new Prosecutor of the ICC will not help.
We are in a “third wave” of accountability, where grass-root organizations, NGOs, mechanisms, and domestic prosecutions are filling in the gaps created by the shutting down of the international tribunals in Yugoslavia, Rwanda, and Sierra Leone. Those courts are done with their work. Accountability has shifted from international efforts (the first and second waves) to domestic efforts. Only the ICC stands as a permanent international bastion to the beast of impunity as it feeds on the edges of humanity and civilization.
Despite the dedication and hard work of those who work or have worked in the ICC, it is not the organization that is a good example today of the efficient and effective administration of justice. This can be changed by appointing experienced senior staff who have served in those international trenches as prosecutors, registrars, and most importantly judges (the Achilles heel of modern international criminal law). Alas, the candidates to be Prosecutor of the ICC are certainly “not perfect” and lack the international experience and stature to move the ICC forward.
Regardless of who is appointed Prosecutor of the ICC, we must support them and assist the ICC in trying to fulfill its mandate. It is hoped they have the ability to listen, think, learn, and manage the Office of the Prosecutor in a way worthy of its mandate. Once again we must rally around a bruised and battered court and hope for the best. The last thing we want the ICC to become is a modern version of the League of Nations, with little respect and no international clout. Heed Benito Mussolini, “the League [of Nations] is very well when sparrows shout, but no good at all when eagles fall out.”
David M. Crane is the Founding Chief Prosecutor of the Special Court for Sierra Leone, an international war crimes tribunal for West Africa formed by the United Nations to address war crimes committed in Sierra Leone.
Suggested citation: David M. Crane, “Not Perfect Candidates” To Be the Next Prosecutor of the International Criminal Court, JURIST – Professional Commentary, July 10, 2020, https://www.jurist.org/commentary/2020/07/david-crane-icc-prosecutor/.
This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at firstname.lastname@example.org
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