The imminent election of the next Prosecutor of the International Criminal Court is of crucial importance for the Court. A key aspect of the Prosecutor’s work will be his/her capacity to build relationships of trust and cooperation with the Defence and Victims in order to contribute to the overall quality of the justice rendered at the ICC. It is in this spirit of constructive dialogue that the ICCBA, the representative organisation of Defence and Victims’ Counsel at the ICC, sent a questionnaire to the four candidates shortlisted for the position.
In addition to questions relating generally to the candidates’ visions for the Office of the Prosecutor, its mandate and its ethical obligations, this questionnaire addressed a number of issues which are central to the core mandate of the ICCBA: 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.
A genuine understanding of these issues and a true commitment by the future Prosecutor to engage on them should be a key component of the selection process. In that respect, the ICCBA appreciates the willingness of the candidates to engage constructively in a transparent way with these questions. It is the hope of the ICCBA that, moving forward with the process, any additional candidates who might be nominated will engage with the ICCBA in a similarly open way.
Summarising the responses, the ICCBA welcomes the fact that all candidates recognise the importance for the integrity of proceedings and of ensuring that trials are conducted fairly (which includes providing the Accused with adequate facilities to prepare his or her defence) and in full respect for the effective participation of victims.
The ICCBA also welcomes the commitment of the candidates to promoting reviews of current OTP policies in certain key fields, such as disclosures and investigations. Lastly, the ICCBA welcomes their general commitment to dialogue with the association in the future.
However, the ICCBA notes with some concern that:
Beyond recognising the importance of dialogue with victim representatives, some candidates do not provide specific support for proposed policy changes to increase the efficacy of victim participation, in particular when it comes to communication of information relevant to the interests of participating victims.
The commitment of some of the candidates is unclear when it comes to the question of not systematically opposing requests for provisional release, despite this flowing naturally from the presumption of innocence. Any suggestion that provisional release is never a good option in international criminal proceedings cannot be endorsed by the ICCBA.
The candidates do not commit to a formal dialogue with the ICCBA in terms of drafting investigation protocols, invoking the independence of the OTP in that respect. However, with respect, this suggests a misconception of the objective of investigation protocols. The OTP’s investigation practices on key matters such as contact with Defence or Victims’ witnesses, contact with participating Victims, use of confidential material, disclosure and redactions clearly have an impact on the fairness of any resulting judicial proceedings. Far from being purely a matter for the OTP’s independent discretion, they are matters which affect Defence rights and Victims’ interests and therefore are routinely debated before the Chambers and regulated judicially. Agreeing protocols on such matters in advance would simply enhance the fairnessand expedition of trial proceedings.
Disappointingly, none of the candidates supports giving the ICCBA a formal role in the Coordination Council of the ICC, despite the fact that the Counsel and support staff who are represented by the ICCBA are daily users of the facilities of the Court on a par with its Organs and, as such, should have a say in the administrative decisions that directly impact their working conditions.
As the only association recognised by the ASP as representing the interests of Defence and Victims’ Counsel and their support staff at the ICC, the ICCBA will continue to promote, during this election, the values on which it was built in order to help the ICC achieve its ambition of being a model in terms of delivering justice in conformity with the highest standards of fairness to the Defence and Victims.
The full responses from each candidates are available below: