Next ICC Prosecutor Will be African

Next ICC Prosecutor Will be African

The International Criminal Court has announced that the list of candidates for election to be the next Prosecutor of the ICC has been narrowed to two. The elections will be held at the Tenth Session of the Assembly of States Parties to the Statute of the ICC which will take place in December in New York. The ICC issued a statement yesterday in which it announced that:

After informal consultations among States Parties, it was decided to narrow the list to two candidates: Ms. Fatou Bensouda (Gambia) and Mr. Mohamed Chande Othman (United Republic of Tanzania). At the 1 December informal consultations, to be held in New York, States Parties will see if there is consensus on one candidate.

The process of searching for a prosecutor to replace Luis Moreno Ocampo has been ongoing for a while. A while ago the Assembly of States Parties (ASP) decided that  “every effort shall be made to elect the Prosecutor by consensus.” (ICC-ASP/3/Res.6). In order to facilitate the process, the Assembly appointed a search committee which reported in October and put forward four candidates for electon as prosecutor. In addition to Fatou Bensouda and Mohamed Othman, the other two candidates on the search committee’s list were Andrew T. Cayley (United Kingdom) and Robert Petit (Canada). After the report was issued, a process of consultation led by Ambassador Christian Wenaweser of Liechtenstein (President of the ICC ASP) has resulted in the two non-African candidates being knocked out from further consideration. That process of consultation was described by Amb. Wenaweser this this statement issued last week. Part of that statement makes clear, what has been suspected for a while. ICC Parties are keen that the next Prosecutor be African. Amb Wenaweser stated:

Second, there is a pervasive sentiment that the next Prosecutor should come from Africa. While this view has been put forward in very different ways and some of you have expressed explicit support for candidates from other parts of the world, we feel nevertheless safe to conclude that a consensus will only be possible if indeed we focus on the two names from the African region. Since last Friday, the consultations held have therefore focused on the two potential African candidates. Our consultations since have indicated that this is indeed the right direction and that there is general acceptance of this approach.

As readers know, all the situations currently being investigated by the ICC and where prosecutions have arisen are from Africa. Also as  we have covered on this blog several times there has been intense criticisim by the African Union (and some Afrian States) of the ICC with there being an accusation of bias against Africa. It is all of this that has led to the feeling that next Prosecutor should come from Africa. It is also worth noting that African Union criticism of the ICC has included personal criticism of the current prosecutor Luis Moreno Ocampo.

The election of an African prosecutor should help to deflect some of this criticism and should help to reduce the tensions between Africa and the ICC. I do think that countering the perception that the ICC is not an anti-African court is very important. It is also important for African and indeed the world to see that the court is not an instrument by others against Africa but that Africa and Africans also stand against the international crimes that the Court was set up to prosecute.

However, it is also important that whoever is elected is not seen as elected simply because he or she is African. The two candidates left are two very qualified candidates. Fatou Bensouda has been Deputy Prosecutor at the ICC for several years and before that was senior legal adviser at the International Criminal Tribunal for Rwanda. She has also been Attorney General in Gambia. Her CV is not only distinguished but I think those who have met her and spent time with her, as I have had the pleasure of doing, know that she is impressive and very capable. I don’t know Mohamed Othman but his CV is also very distinguished. He is Chief Justice in Tanzania and before this was Prosecutor General at the Special Panels for Serious Crimes established by the UN in East Timor. He was previously Chief of Prosecutions at the ICTR.

Consultations are ongoing in New York in an attempt to narrow the field to one and to arrive at a consensus candidate. We might know by tomorrow who that one is. Fatou Bensouda is the candidate endorsed by the African Union and seems very much to be the front runner for the position.