The process of electing the next ICC Prosecutor is expected to conclude in the first half of February 2021, following ongoing consultations between the States Parties. The ASP will either select one candidate by consensus, or proceed to a formal vote on the candidates.
Nine candidates are currently being considered for the position, and the ICCBA has sent them all a questionnaire in order to obtain their views on a number of issues that are important for Counsel representing the Accused and victims at the ICC (ensuring respect for the rights of the Defence, particularly in terms of disclosure obligations, respecting the effective participation of victims at all stages of the proceedings, and the need for an effective dialogue between the Parties and participants).
The four candidates initially shortlisted provided their responses to the questionnaires in the fall of 2020, and were published by the ICCBA in November 2020. The ICCBA received three additional responses since (see below).
Firstly, the ICCBA appreciates that most candidates chose to engage constructively with the issues raised in the questionnaire. While directly related to the core mandate of the ICCBA, the questions touch upon issues that should be viewed as crucial by all stakeholders in the Rome Statute framework when reflecting on the profile and perspective of the future ICC Prosecutor. The ICC’s legitimacy and success as an institution, with the ambition of being a beacon in the fight against impunity, requires justice being rendered in full respect of the rights of the accused and with the effective participation of victims.
Second, the ICCBA welcomes the commitment of the three additional candidates who responded to the questionnaire, to conduct OTP activities at all stages of the proceedings in full appreciation of the rights of the Defence and their recognition of the need to promote active involvement of the victims. The candidates also seem to be in favour of promoting an ongoing dialogue with the ICCBA during their mandate.
Third, the ICCBA notes that several candidates demonstrate concrete knowledge, due to their domestic practice or past practice at the ICC, of the difficulties faced by the Defence (for example in matters relating to disclosures) or victims (for example in terms of promoting effective participation in the proceedings). The ICCBA believes this type of experience, in particular in relation to the ICC, may be crucial for the next ICC Prosecutor when reviewing past practice of the OTP and implementing proposals for reforms.
Fourth, the ICCBA welcomes the particular indications from all three candidates: 1) supporting the principle that the ICCBA should be able to play some role in the Coordination Council of the ICC; 2) recognising the need to respect the presumption of innocence in litigation relating to provisional release; 3) in favour of revisiting the policy paper relating to victim participation; and 4) acknowledging that reform is needed when it comes to disclosure practices of the OTP.
Fifth, the ICCBA notes that one of the candidates considers that there is limited benefit in interacting with victims during the PE phase. Such a policy, if adopted, would constitute a step backwards in ensuring effective participation of victims at all stages of the proceedings.
Sixth, the ICCBA welcomes the commitment of one of the candidates to tackle the specific problem of OTP-led Article 70 proceedings in cases where allegations are made against OTP witnesses or personnel.
Finally, moving forward, the ICCBA reiterates its commitment to promote full respect for the rights of the Defence and effective participation of victims in all interactions with the ICC. The ICCBA looks forward to working constructively with the next Prosecutor on all matters possibly affecting the fairness of the proceedings for the Accused and victims, in the shared interest of all to ensure that ICC proceedings are fair, effective and expeditious.
The full responses are available below: