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Justice Update – The Heat is On

From July 1 member states of the International Criminal Court (ICC) can nominate their candidate for the next prosecutor. But, this time they have a small candidate list of carefully selected, legally competent, pre-vetted, persons from which to chose.

But there are no ‘big shots’ on the 4 person list prepared by the – newfangled – Committee on the Election of the Prosecutor. Its chair, Sabine Nolke (previously to be heard here), has come on the show to explain their process, which valued on competency over experience.

She says these are indeed the best possible people in what she calls ‘a shallow pool’ of relevant talent to take on the highest profile job in international criminal justice.

We also asked her about the importance of the “high moral character” and the lobby of NGO’s that we spoke about in our Episode 26 chat with Danya Chaikel, Diane Marie Amann and Priya Pillai.

Update: Because of the current discussion about the prosecutor’s elections we see on Twitter many are looking at Sabine Nolke’s exact words to us. To make sure everybody has the full info we have made a written transcript of the episode accessible. Click below to open the transcript or click here to open it as a separate document.

read a transcript of this episode

Disclaimer: Asymmetrical Haircuts is produced as a podcast, meaning it is meant to be listened to and not read. Because of this, we recommend that you listen to the episode while reading, because the written word does not do justice to the emotion or tone used by our speakers. However, because we recognise there might be bandwidth issues or you might be using a hearing aid, we have provided written transcripts for all our available episodes.

[00:00:02] Asymmetrical Haircuts, justice update. In partnership with JusticeInfo.net. All rise.

Janet [00:00:09] Hi, Steph.

Stef [00:00:10] Hi, Janet.

Janet [00:00:10] Were you on tenterhooks this week waiting for the committee of the election for the prosecutor, waiting for them to see what kind of shortlist they were going to come up with by the end of June?

Stef [00:00:19] I was kind of on tenterhooks. And, of course, they dropped the decision just when I didn’t expect around midnight, when I’d already gone to bed. But it’s been a fascinating procedure that was set up in April last year where you had five members of a committee to elect somebody with the legal experts added in. Initially, they had 55 applications to start, but they needed to widen it. And so they left the application going in. In the end, they had over 80 applications and that was finally whittled down to a shortlist of 16 and then 14. And then those people were all interviewed.

Janet [00:00:55] And they’ve been, I think, quite transparent. I mean, relatively for a for a committee that has to keep things, you know, private for reasons of privacy. I think they gave a breakdown by gender and by regional group of who’d actually applied, and they’d had these consultations with NGOs.

Stef [00:01:14] And that was maybe for us the most interesting, because there’s been this big pressure and lobby to kind of focus on the character of the potential next prosecutor. And we had Dana Chaikel on the podcast explaining why there was this concern and where there were some possible #Metoo rumours around some candidates. And so everybody was stressing the high moral character of the next prosecutor.

Janet [00:01:41] And we also had Diane Amann in the same podcast saying that it was going to be impossible to find anybody to fulfil everybody’s expectations, but we should demand the best possible candidates. And now we’ve got the list.

Stef [00:01:54] Yeah, we’ve got a list that could be three to six people and they went for four. We have some names that we weren’t expecting. I guess it’s I guess it’s all kind of names we weren’t really expecting from Nigeria, we have Morris Anyah. And the Irish prosecutor, Fergal Gaynor.

Janet [00:02:11] And from Uganda, the only woman on the list Susan Okalany. And Richard Roy from Canada. So you’re saying they’re a bit of a surprise to you. Do you know any of them?

Stef [00:02:22] I do know Fergal Gaynor. And mostly he made an impression on me because he was one of the counsel for the Afghan victims in December. And I followed those hearings. And he was quite eloquent in those hearings and also had this lovely Irish accent. So he stood out. So when I saw the name, this was the only one that I knew.

Janet [00:02:43] I think because of our ICC focus, he, for me, is also the one who stood up because of his work, also for victims in one of the Kenya cases. But I had come across Okalany’s name previously with the Thomas Kwoyelo case at the International Crimes Division in Uganda. But really, they’re they’re a bit different from what we were expecting.

Stef [00:03:06] Yeah. Not only for us, the whole Twittersphere was all about surprise. And then people jumped on that saying we shouldn’t be surprised and all that. So, we had the chair of the committee on before on a podcast, Sabine Nolke. And we invited her for this justice update, which we’re doing in partnership with Justice Info to come on and tell us a bit more about the process.

Janet [00:03:26] Hi, Sabine. Ambassador Nolke, are you there?

Nolke [00:03:28] I am there. Good morning. Or rather good afternoon. I’ve lost track of time. It’s been a very long three and a half months.

Janet [00:03:35] And you’re speaking to us from Dublin, I think. Is that right? And did I see that you were in Connemara yesterday where I took my honeymoon?

Nolke [00:03:44] Yes, I was. It was my first outing after well, three and a half months of lockdown. So it was very, very exciting, very happy to be out there and breathing some fresh air and doing my job, which is great.

Janet [00:03:58] Well, let’s get down to the reason we’re talking to you, which is the selection of the ICC prosecutor candidates for the ICC prosecutor. So just to start with, can we ask you how difficult was this, considering that you’ve been performing the last part of this under these Covid 19 circumstances?

Nolke [00:04:18] Well, it certainly changed the approach. We hoped to meet all the candidates face to face the end of April in The Hague, and then that became pretty quickly and pretty obviously impossible to do. So we decided to go through virtual interviews. The rest of the world is functioning virtually these days, although we ended up using the court’s confidential webcast as a webex platform, which is the same platform that they use to interview witnesses in cases, for example, remotely. So it’s it’s a secure and confidential platform. The trick, of course, was that we have five experts on the panel, five committee members in many different times zones. And the candidates came to us for many different time zones as well. So instead of being able to do the interviews in a three hour block, they were actually spread out over three and a half weeks because we had to find that one window where everybody could make it. And they succeeded. So so we went to complete all the interviews within the time that we had been asked, which was the end of June.

Stef [00:05:28] And talking about candidates. In the beginning, you were kind of, I guess, struggling to get applications. The deadline had to be extended. Why do you think people didn’t apply, especially women, not so many women applied?

Nolke [00:05:42] Well, I honestly, I can’t answer that question. I can only speculate. I mean, you can’t prove a negative. So I can’t say most people didn’t apply because I can only speak for the ones to some extent who did. We did have far fewer applications than I thought, including some from people that you thought would be applying and did not. We did extend with a special exhortation to states to make sure that the ad was brought to the attention of qualified professionals, particularly in the domestic system. I mean, frankly, the pool of international criminal experts is not huge. And we also heard it loud and clear from states prior to the process starting that they also wanted something new and wanted to really reach out far and wide to see where we could find qualified candidates that could help us meet the court’s challenges for the next nine years. And so we did extend, and we did recirculate the vacancy advertisement amongst prosecutorial associations. And again, as I said, asked states to make sure that it was brought to the attention of people they thought might be qualified applicants. And it did work. We got quite a few more in the last four weeks. So that was very gratifying. But we still only ended up with 89 applicants. And I must say that not all of those applicants were – shall we say – immediately apparent as being qualified. We had a couple who clearly applied for the wrong job on the ICC’s vacancy list. And so, yes, it was that the pool was a bit shallower than we had hoped. But I think we did end up with a number of very highly qualified applicants be interviewed. We had initially set 16 to be interviewed. Two of them dropped out before the interview. So that brought us down to 14. But I think there were some very promising candidates in there. And I do firmly believe that we ended up with the most highly qualified candidates that are about to be interviewed.

Janet [00:08:05] Your report has a lot of detail in it about all of the different things you were you were looking for. I mean, we’ve got actual experience. We’ve got this ‘high moral character’ issue. We’ve got the record of independence and impartiality. You know, I’m wondering, how on earth did you manage to balance up those different things? Was that the one element that was more important than the others for you? Because we have seen some some criticism back to your choices to suggest that maybe your ‘actual experience’ value was less high a value than the others.

Nolke [00:08:43] Well, I’ve only seen a little bit of the criticism. I’m sitting in Dublin and not frankly, I don’t have a lot of time to go on, read Twitter and try and draw things out. One of the criticisms is where are the heavy hitters. Well, I suppose that depends on how you define the heavy hitter. Is it somebody you know, and almost by definition has to be somebody you know, that you define as a heavy, heavy hitter. So if you get a new person that many of us, by your definition, they cannot be that. Really, we looked at all the qualifications. It was a big picture. And you will find that in our little summary of the candidates that did come out on top, be noted where they had some shortcomings and we certainly invite the states parties to test those. Was there any one quality that stood out? No, because they were all equal. We looked for complete package. We looked for somebody who could we could manage the court, who could instil the confidence of the teams working for them. We looked for someone who would bring experience of handling complex cases because that was clearly something that was on top of the mind of states parties. We looked for someone who would have an understanding of putting a case together with credible evidence that would lead to prosecutorial success. And yes, we looked for high moral character as well, because in the past, as you know, there have been issues raised to that effect as well. So it was a complete package. And you will see that in the report. We actually said very specifically, there is no such thing as the perfect candidate. Everyone, everyone will have something there where they may not be perfect yet, but bearing that in mind, they also looked at somebody who, if they had a lacuna, would have the right personality, the right skill set and the right attitude to grow into that.

Stef [00:10:53] Some commentators on Twitter argue that maybe you went – because in three out of the four people, it has a little note with the short comings saying that they haven’t ran a major teams or haven’t run such a big division before – and one of the comments on Twitter was maybe that the commission went for this because, that was kind of bringing new blood into the ICC. And that you weren’t kind of choosing the usual suspects of people who would run all these previous international courts before. And that’s why you went with these candidates. No, you can’t actually comment on it. Yes, that’s exactly what we did. But I’m wondering because you also stressing the kind of ‘we wanted a change, we wanted something new’. So that was, I guess, a big factor in the in the in the process?

Nolke [00:11:48] No, not no, not necessarily. I think, though, the raw fact of the matter is the old OTP has, what, 500 people in it? How many prosecutors could you name offhand who have managed a team that size? And the answer is there aren’t very many. So what do you then look for is you looking for somebody who was capable of managing a team that size, and that is a question of attitude, of approach. Is the person willing to delegate? How do they understand accountability? Do they understand diversity? Do they understand the value of different perspectives? And all of those things are things that you’re looking for. The fact that you’ve done something in the past just doesn’t mean you’re the right person to do it again. And I’m speaking very generally here. You know, you look at the qualities of the individual, and that’s why it’s important to note that this was a competency of approach to interpret the interview. It’s competency-based. It’s not experience-based necessarily. And, of course, experience forms one of the competencies, but it’s not the single determinative factor. Just because I’ve done it again means I can do it again. No, it’s am I capable of doing this stuff? That’s what we were looking for.

Janet [00:13:09] There was an a new approach that you took to vetting that you took the way that the ICC handles new candidates for all of the people who come to work at the ICC, the safety and security section, I think it’s called. And you added that procedure in. Did that actually affect the outcome? You adding that procedure?

[00:13:33] Forgive me if I don’t give a direct answer to that one, but I can certainly tell you that it gave an important dimension to the discussions that we had. Verifying candidates claims I think is very important. And any organisation that I know does that before they offer somebody a job. I mean, I have hired dozens and dozens of people in my past from the very first thing I do is pick up the phone and check the references. Now, intriguingly, in all other appointment processes in the court that is done, it is not done for elected officials. And it became very clear to us in our discussions with civil society specifically that they were concerned by this, because we think as multilateralists understand that once the electoral process begins, there are named candidates. There are nominated candidates. States parties start their lobbying. That a lot of the time some of those details get lost amongst the politicking. It was very clear to us that civil society, which to us constitutes a large part of who the court is for and about that in order for the process to be a legitimate one, we had to introduce something like that, to ensure that the qualifications under Article 42, three of the Rome Statute are, in fact, met and that is the high moral character and that is information that you can really get through a vetting process.

Stef [00:15:08] And you have in the end, there is a short list of only four candidates who could have had six according to the process.

Nolke [00:15:15] Yes, we could also have had three.

Stef [00:15:17] Yeah. Oh. But it seems like surely you had six well enough qualified candidates. It’s four. Sounds like a not so much really.

Nolke [00:15:26] We ran for the most qualified candidates. We also went for the candidates on which we could have consensus as a committee and for which we also took the advice from the panel of experts. So we ended up with four. As a result of all of this.

Stef [00:15:46] Is this election balanced Do you think? There’re comments that only one woman and two Africans?

Nolke [00:15:52] Well, I mean, have a look at the pool of applicants and they put that into the report on purpose because we knew that this would be one of the questions to be asked. Our job was to come up with the most highly qualified candidates. We did that. Secondarily, we were supposed to look at gender and geographic distribution. If it had qualified candidates, it met all our criteria and that presented all the competencies in the interview process. It might have had more. It might have had a more diverse slate. But again, the pool is shallow. We looked at the number of Eastern European applicants, for example, was in the single digits. We can’t conjure them up. You know, we have to go with who we have. And that’s what we did. And amongst the applicants that we did have, we picked who we considered to be the most highly qualified. And we’re very confident in our assessment. These were not choices that were derived that lightly. It took us a long time. And as I said, it was a unanimous choice. And I think the states, parties and civil society can take a fair bit of confidence based on that.  There are no compromise candidates on that list. These were people that we could all agree on, would be able to do the job and would do good service to the court.

Janet [00:17:09] Talking about compromise. The period for nominations has now been opened by the Bureau of the Assembly of States Parties, and their emphasis is that the court needs to find or well the states need to find for the court a consensus candidate. Some people are saying, well, actually, states could nominate somebody who’s not on this list. I mean, what what kind of approach you’re expecting states to take from now?

Nolke [00:17:35] Well, honestly, I can’t speak for the states on this one. The Rome Statute has a process which asks for states to nominate. It does not include a process like the one that we have just engaged in. However, the process that we’ve just engaged in, and it took over a year, was put together by states because they had found that what they had in place previously wasn’t doing the trick. So they wanted something different and something new. And that is the process that we’ve built and we worked with. Yes, we do have recommendations for the future. And you would see that in the report. We’d be very happy to produce a lessons learnt on the process that we’ve had, whether it can be improved, whether there can be things that should be changed, how states will look at this. There is nothing to stop a state from nominating someone who is not on the list. But I would also remind states that they are the ones who chose the process that produced the candidates that we put to them. So there are the states, I think all that I can say on this matter. But we shall see.

Stef [00:18:44] And now this process is kind of rounded off. And I guess, though, you can possibly get back to being slightly impartial again. So you’re Canadian. You have a Canadian candidate, so you’re hoping for a win for Canada?

Nolke [00:18:58] I am absolutely not hoping for a win for Canada. I’m hoping for a win for the court. Just for the record. Any candidate that we interviewed or even that we considered to put on the long list for the interview, if that candidate was a national of one of the panel members or one of the committee members, that committee or panel member would leave the room, for that discussion to happen. I did not participate in any of the discussions around the Canadian candidate and others did not participate in discussions around candidates that may have been of their nationality. So no. And I will remain objective on that process at this point. I am sitting in Dublin. I am not responsible for. For trying to nominate anyone or so I can stay completely objective. All I can say is that the four candidates we presented are all people be confident are capable of doing the job.

Janet [00:19:57] Thank you very much for your time, Sabine, and hope you can enjoy getting out of Dublin again some time at some point soon.

Nolke [00:20:04] It will be lovely. Thanks very much, Janet. Thanks a lot. Stephanie. It was great to see you guys again if only virtually. All right.

Stef [00:20:11] Thank you.

Nolke [00:20:11] Cheers. Good bye.

[00:20:16] This podcast was created and presented by Janet Anderson and Stephanie van den Berg. It is published in partnership with JusticeInfo.Net. You can find show notes and additional blogs on asymmetrical haircuts dot com. It is recorded in The Hague humanity hub, home to a community of innovators in the field of peace, justice, development and humanitarian action. Music is by audionautix dot com, and the show is available on every major podcast service. So please subscribe, give us a rating and spread the word.

Disclaimer: This transcript was generated using online transcribing software, and checked and supplemented by the Asymmetrical Haircuts team. Because of this we cannot guarantee it is completely error free. Please check the corresponding audio for any errors before quoting.


This podcast has been produced as part of a partnership with JusticeInfo.net, an independent website in French and English covering justice initiatives in countries dealing with serious violence. It is a media outlet of Fondation Hirondelle, based in Lausanne, Switzerland.