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The Prosecutor Files: Fergal Gaynor

Fergal Gaynor talks to Janet, Stephanie and sound editor Hannah van der Wurff

Irish candidate Fergal Gaynor is no stranger to international courts. As a prosecutor with over 18 years of experience in war crimes tribunals he started in the office of the prosecutor in the Rwanda and Yugoslav tribunals where he worked on the trials of Bosnian Serb leaders Radovan Karadzic and Momcilo Krajisnik and the Nyiramasuhuko et al. case.

At the Extraordinary Chambers in the Court of Cambodia he was involved in the cases of Khmer Rouge leaders Nuon Chea and Khieu Samphan.

Avid ICC watchers will know him also because he worked as a counsel for victims in the Kenya and Afghanistan cases. He has also worked for CIJA, gathering evidence about Syrian regime crimes and was recently named a judge at the new Kosovo tribunal in The Hague.

Be sure to also check out what he says to questions from the International Criminal Court Bar Association and to the NGO’s united in the Coalition for the International Criminal Court with detailed answers to a host of other questions.

On Fergal’s night stand is the independent expert review of the ICC –very on brand– but he also recommends Daniel Kahneman’s Thinking, Fast and Slow.

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.

Fergal Gaynor [00:00:00] I’ve been a prosecutor, I’ve been a victims representative, I’ve represented defence lawyers and I’ve taken an oath to serve as a judge of the Kosovo specialist chambers. So I’m completely and fully aware of the requirements of independence and impartiality of the prosecutor.

Sabine Nolke [00:00:20] We need to be looked at all the qualifications. It was a big picture.

Priya Pillai [00:00:25] The capitalised Prosecutor.

Diane Amann [00:00:27] We can’t expect someone to be an inspiring world leader, a deft diplomat, a brilliant boss and an incisive legal strategist, all at the same time. But in fact, we do. Impeccable personal and professional integrity.

Priya [00:00:44] I mean, a list of really, really incredible sort of characteristics.

Sabine [00:00:49] We can’t conjure them up.

Diane [00:00:50] And we can only hope that that person will have some pixie dust.

Sabine [00:00:56] Our job was to come up with the most highly qualified candidates. We did that.

Stephanie van den Berg [00:01:04] Welcome to our special edition of what we are calling the prosecutor files for asymmetrical haircut.

Janet Anderson [00:01:09] This is a series in which we are trying to interview all of the candidates for the ICC prosecutor job. And in this episode, we’re talking to Fergal Gaynor.

Fergal [00:01:19] Hello. Good afternoon to all of you.

Janet [00:01:23] Fergal is an Irish prosecutor with over 18 years of experience in international courts. He’s worked as a prosecutor at the Rwanda Yugoslav Cambodia Tribunals. And avid ICC watchers will also know him because he worked as a counsel for victims in the Kenya case. And I think Stephanie’s also seen him working on the Afghanistan case. He’s one of the four shortlisted candidates that came out of the current election process at the ICC.

Stephanie [00:01:51] And the standout line of his application letter to the ICC was for me as the lead author of hundreds of legal submissions and multiple concurrent cases at four international courts. I have never missed a deadline.

Janet [00:02:02] Well, I don’t think I could ever say that about me. So let’s say our first question, which I think is the one that you’ve probably practised a lot Fergal: why would you want this job?

Fergal [00:02:15] Well, I think it’s an incredibly exciting period for international criminal justice. International criminal justice is coming out of its infancy and it’s entering in a sense, it’s middle age. We’ve seen successes. We’ve seen failures. We’ve seen areas where the delivery of justice has been met with gratitude by victims communities. And we’ve seen areas where the delivery of justice has been met with anger and frustration by victims communities. So I think at this stage of the international criminal justice project, it’s an extremely exciting time for the International Criminal Court in particular. And I believe that it’s time for a new generation of leadership in international criminal justice as a whole. And I am ready to serve in that, in the capacity as prosecutor of the ICC, which is probably the most consequential of all of the positions in international criminal justice.

Stephanie [00:03:15] Now, the problem of being the kind of prosecutor of the ICC is also that you’re the figurehead of the court and kind of a target. So how will you respond if you and other staff or even your families get sanctioned by the United States?

Fergal [00:03:32] Yeah, I’ve certainly taken steps to ensure that I don’t have any assets in the United States. To me, the sacrifice of not having not having the capacity to to travel to a particular country for the next nine years is not a sacrifice at all. It’s not comparable to the sacrifices that people make every single day in Syria, for example, not to mention other parts of the world in the pursuit of justice. And it’s absolutely not a problem at all.

Janet [00:04:00] And do you think that you’ll be able to carry on the Afghanistan investigation and maybe other investigations, for example, Israel, which are going to, again, put you under incredible pressure?

Fergal [00:04:13] Well, I think the most important thing for the next prosecutor is to get a complete briefing from all of the staff members within the Office of the Prosecutor who have been working on the files. And the next prosecutor is going to have to make decisions about which situations to proceed with and which situations to prioritise on the basis of an extremely informed body of evidence. And I think it would be it would be unwise, really, to make any forecast, given that I don’t have access to all of the confidential information that the Office of the Prosecutor has as to how to proceed in any particular situation.

Stephanie [00:04:54] We’ve asked the community listening to Asymmetrical Haircuts if they had any questions that they’d like to put to the candidates and international lawyer Priya Pillai rose to the occasion, even recording her questions. So her first one is this:.

Priya [00:05:07] If elected, what is your plan and what are your priorities for the first hundred days?

Janet [00:05:13] So Fergal, you’ve just said that you’re not going to say your priorities, but Priya wants to know what are your priorities?

Fergal [00:05:19] My priorities revolve in the long term around three basic issues. One is increasing the conviction rate. One is improving cooperation. And one is improving the use of human and other resources within the Office of the Prosecutor. Those are the three main areas of focus. Within the first 100 days, I think we need to, first of all, establish a change management unit, which is going to deal with the report of the experts which we’ve received. We’re waiting to hear from the Assembly of States Parties as to how they wish to proceed with that report. But I believe that report provides a solid basis for action across a range of different issues, all of which, frankly, are related in some way to those three issues of increasing the conviction rate and improving cooperation and improving resource management.

Stephanie [00:06:13] And what experience managing a large team like the Office of the Prosecutor can you bring to the table? What skills do you bring that make you a suitable manager for the office and potential reforms that you want to push through?

Fergal [00:06:28] Sure, I think it’s very important that the next prosecutor is somebody who has extensive management experience of the day to day issues that you face as a prosecutor in the international courts. And I’ve been a prosecutor, as you mentioned, at the ICTY, the ICTR, at the ECCC. I’ve been lead counsel for victims in in three situations at the ICC. I’ve recently been appointed a judge of the Kosovo Specialist Chambers. So I do have a fairly broad array of management skills and I could go through all of the various areas. But let’s just pick, you know, just a couple of them. For example, insider witnesses, victim witnesses, noncooperative expert witnesses, digital evidence, managing field security, managing the security of the staff members of your field staff. You know, there are so many different issues, which as a seasoned international prosecutor who’s been prosecuting in this field for nearly 20 years, I’ve managed pretty much every single one of them. So I’ve seen approaches which have succeeded. I’ve seen approaches which have failed. I’ve managed teams which have extremely high levels of motivation. I’ve managed teams with low levels of motivation. I’ve wound down teams. I’ve started up teams. I’ve basically dealt with every possible aspect, three hundred and sixty degrees, to deal with the successful management of people in the investigation and prosecution of the kinds of cases that the ICC has to deal with.

Janet [00:07:59] Since you made your application, we’ve seen a report come out, the Independent Expert Review, which had a very large number of recommendations. So I’m going to have another pre-recorded question from Priya here.

Priya [00:08:12] What are the recommendations of the independent expert review that need to be addressed urgently, and how do you propose to do so?

Fergal [00:08:21] There there are a huge number of extremely good recommendations in this report. We do have to observe the fact that the Assembly of States Parties is taking carriage of the reform process and it is deciding exactly how to take that reform forward. But I do think that one of the most urgent steps the next prosecutor is going to have to take is to deal with outstanding cases of harassment and bullying within the workplace. It’s in my view, it’s extremely important both for the victim of the alleged incident and for the perpetrator of the alleged incident of harassment or or bullying, that these issues be resolved very, very quickly. It’s important for the victim because who wants to go into a workplace where, you know, you’re going to be bullied or harassed and it’s important for the perpetrator because if the person truly is innocent, they deserve to have their name cleared as quickly as possible. It’s extremely important for the working environment that these issues are dealt with swiftly because we do need to raise the general atmosphere in the Office of the Prosecutor. It’s, we’ve seen this in this expert report and we’ve also read about this issue in other reports, which, for example, the Open Society Institute produced, and a previous report that Brenda Hollis and her distinguished colleagues produced concerning an earlier investigation. So that to me, is an extremely urgent issue.

Stephanie [00:09:52] And have you yourself ever been accused of bullying or other misconduct?

Fergal [00:09:57] No, I have not.

Stephanie [00:09:59] And have you been in an office where you maybe witnessed harassment and or bullying? And if that if so, can you say what you did at the time about it?

Fergal [00:10:08] Well, I have not witnessed sexual harassment or racial harassment in the workplace or elsewhere. No, I have not. I have to be honest, I observed incidents which do probably rise to the level of bullying. And frankly, I would say I was too tolerant. I should have stepped in earlier to address the situation. I now have a greater understanding of just how damaging bullying is not only to the individual involved, but to the general productivity of teams. So to me, it’s not just a matter of principle, it’s a matter of pragmatism. If we want to raise the output, the quality and quantity of the output of the Office of the Prosecutor, we do have to act against bullying, harassment, and we have to do swiftly and we have to do do this, observing all of the due process guarantees which are applicable to these cases.

Janet [00:11:06] A lot of the job of the prosecutor is actually being the public face of the ICC for other people. Do you think you are the right person to be the public face of the ICC?

Fergal [00:11:17] Well, I do. I think communication is hugely important. I think communication across the board. It’s a question of having excellent communication skills, both internally within the Office of the Prosecutor and excellent communication skills externally. You have to be able to listen carefully. Listening is one of the most important communication skills to victims in the field, to the governments of states, parties, to civil society. You have to take on board what these people are saying, and you have to be the kind of person who is not only interested in, but actually has experience in shrinking the distance between the courtroom on the one hand and the town or village where the crimes took place on the other. I have extensive experience in doing that and in particular in engaging in meetings lasting hours – we undertook maybe 70 or 80 meetings, each of which probably lasted about five hours – concerning hundreds and hundreds of victims in different towns and villages in Africa. And as a result of that, I really had my own understanding of the justice process increased. I realised just how important it is for the people in the situation country to be listened to, to have their questions answered, and to receive responsive answers to the questions they have about the ICC.

Fergal [00:12:41] And not only that, you’ve got to be able to go into a radio studio, whether it’s the BBC World Service or into a television studio, whether it’s domestic television or international television, and explain what the court is doing, correct misinformation about what the court is doing and to ensure that you can, as far as possible, engage in broad sections of the world community who are supportive of international justice. And in my experience, virtually the vast majority of human beings in whatever part of the world you’re in are supportive of the concept of accountability for mass atrocities.

Stephanie [00:13:22] And Priya had another question related to this. So let’s hear that now.

Priya [00:13:27] For civil society organisations. What engagement with the ICC look any different with you in charge?

Fergal [00:13:34] I would focus on domestic civil society. I think that the relationship with international civil society is quite good. I believe that there is room for improvement in engaging with domestic civil society. For example, just before lockdown, I was at a meeting in East Africa with civil society organisations from Francophone Africa and Anglophone Africa and from other situation countries outside Africa. And we all came together to discuss, in fact, this reform project, which is underway. And it is clear the civil society, country, civil society organisations in the situation countries do feel that they are out of the loop on very, very many different issues. And this is unfortunate because good civil society countries, which exist in every situation country, are a key link for the court in getting its message across and in countering misinformation, which is spread in virtually every situation country where the court is active.

Janet [00:14:32] I want to ask you a specific question about Preliminary Examinations, which is part of the kind of toolbox that you’ll have as a prosecutor – the stage before you open an investigation where you have to assess whether these crimes are worth it or not. Do you think that the way that Preliminary Examinations are being used at the moment is right? For example, in the expert report, there was some criticism, the sense that you need some exit strategies that need to be wrapped up. You know, what are you going to do?

Fergal [00:15:06] I’m largely in favour of the discussion in the report of the of the independent experts. I believe they hit on a lot of the right issues. For me, a very, very important issue as as a prosecutor’s prosecutor, if you like, is the degradation of evidence, the loss of evidence. During the Preliminary Examination period the prosecutor does not have investigative powers under the Rome Statute. They only start once the investigation starts. So if a Preliminary Examination carries on for several years, you will lose evidence. Mobile telephones, hard drives will be thrown away. Evidence is deliberately destroyed. It’s accidentally lost. Some witnesses who you might want to interview will die of natural causes. Others will die of complications relating to the conflict and wounds which they’ve experienced. There are many, many reasons why you want to gather evidence urgently as quickly as possible after the crimes have taken place and preserve and retain that evidence. That doesn’t necessarily mean the trial has to take place at the ICC. The trial can take place domestically, but then the ICC will have that evidence. It’s going to be able to hand it over to the domestic authorities. I think it is important that we move quickly, move towards a situation where either an investigation has begun or the Preliminary Examination is terminated without investigation much more swiftly than at present. And I support the overall broad thrust of the reforms, which the experts suggest.

Stephanie [00:16:35] And with some of the Preliminary Examinations an added complication is, for example, peace negotiations. And you have this big no peace without justice. Would you exercise any form of discretion in situations where you see a negotiated resolution to a conflict being necessary?

Fergal [00:16:54] That’s a hugely important issue. And the Rome Statute deliberately leaves the term ‘interests of justice’ completely undefined. And the elements of the crimes, the rules of procedure & evidence – none of those documents attempt to define what the ‘interests of justice’ are, and I think that was a wise decision. The ‘interests of justice’ will really depend on the situation country. I’ve had enough experience now at this stage of my career from Bosnia and Cambodia and Rwanda and Syria and, you know, other places where I’ve been involved in investigations to understand that each situation has to be addressed on its own merits. And if there is an ongoing peace negotiation, I do think that’s a relevant factor to be taken into account when considering the ‘interests of justice’. And I also think, very importantly, that the prosecutor does not have a monopoly of wisdom as to what the ‘interests of justice’ are. It is the prosecutor who makes the decision. That’s what the Statute says and what that’s what the Appeals Chamber recently upheld. The prosecutor makes the decision, but that decision can be informed and should be informed by submissions from the state in question, from victims groups inside the state. So you could hear from all of these groups as to what their position is as to the potential impact of investigations and prosecutions on peace negotiations in the situation country.

Janet [00:18:16] I picked up a few questions from the international justice commentator Mark Kersten. I mean, he just had some very clear, simple ones. Let me try one of those with you now. Are you going to consider charging perpetrators of crimes related to the environment with crimes against humanity related to the environment?

Fergal [00:18:39] Well, it’s a very broad question. It’s a very good question. It’s a very broad question. But really, you have to look at precisely what the crimes are within the Rome Statute as defined in the elements of the crimes and the jurisprudence of the court. If there is a crime relating to environmental degradation, which is appropriately characterised within the Statute and the elements, well, then, yes, it would be like any other crime. You would consider the gravity of the crime, the impact of the victims and the usual requirements concerning admissibility in deciding whether to charge. Of course, like any pragmatic prosecutor, I don’t particularly like being overturned on appeal. I don’t believe it’s good for the for the victims to have to receive a conviction, which is going to be overturned on appeal. So I do believe the the Rome Statute is generous in terms of the number of crimes it contains. In terms of the modes of liability it contains. And the prosecutors focus should be on the crimes and the modes of liability which are contained in the Statute itself.

Stephanie [00:19:45] And that kind of flows into another question that Mark posed, which is which crimes would you consider to be most pressing today of the things that the ICC could could tackle?

Fergal [00:19:58] Well, you know, there’s no particular crime in particular that that I would favour over another crime selection, by which I mean when by which I mean when you choose charges to prefer, as they say, against an accused, you must choose the charges, which are as closely matched as possible to the evidence you’re charging. Decisions are driven by the evidence. Yes, there might be other policy considerations which you might want to take into account. But ultimately, if you do not have extremely good evidentiary support for your charges, you’re likely to run into trouble. So that is the single most important consideration in choosing charges: is what does the evidence actually say?

Janet [00:20:48] And looking at sexual and gender-based crimes, do you have a specific way forward that you want to tackle those?

Fergal [00:20:57] Now, it’s it’s very important that the next prosecutor, whoever that is, is somebody who’s truly committed to achieving convictions for crimes of sexual violence, including rape, including, for example, forcible marriage, and also these this undefined category of crimes of sexual violence. And the State Parties have deliberately left that category open. It’s very, very important that in bringing evidence for that crime, for that category of crimes, that you bring evidence as to the context in which the crime was committed. Because if you have crimes committed against people or who are being held in detention and in a situation of extreme fear and extreme terror, then an act which might not be offensive in normal life can turn into a crime of sexual violence against the person because of the overall atmosphere of fear and intimidation. And you must also bring evidence as to the long term impact on the victim of the act in question to show, for example, through medical reports of post-traumatic stress disorder years after the incident, the impact that has had on the victim.

Stephanie [00:22:06] Moving on to another kind of aspect of the being the prosecutor of the ICC, you also need to be a diplomat to a large degree. What can you do to build relations with those that are concerned that the court has kind of the wrong strategies, like some African states, for example?

Fergal [00:22:23] The relationship with the African Union is hugely important. I think, again, one of the most important skills and in diplomatic communication is actually listening. You have to listen to states, parties and non-partisan. Like we have to remember that some non party states have been very helpful and to the court in the past that we can hope that that will continue in the future. I think it’s important to take opportunities which the African Union might offer, such as to attend summits of leaders in Addis Ababa. If you’re at a summit, you have a good chance of speaking to a good few people within two or three days and by speaking to people. I don’t mean that the the ICC prosecutor should go there and lecture. I don’t mean that at all. I think the ICC prosecutor should go there and give a clear and fair update to everyone as to the challenges which the prosecutor is encountering in particular situations and simply to build up greater trust between the prosecutor on one hand and the countries of the African Union on the other. As for other regional bodies, I think it’s very important that the prosecutor has a strong relationship with regional bodies, whether in Central America or South America or Southeast Asia, as well as, of course, the European Union and the African Union. And this should be achieved, as I said, on the margins of regional summits and also at the UN Security Council. Let’s let’s not forget that at any given moment, it’s likely that a majority of the states on the U.N. Security Council are going to be ICC member states. Now, the prosecutor has to go to brief the U.N. Security Council in reference to Darfur and Libya anyway. And that provides a great opportunity to have separate informal briefings to those members of the council who are ICC member states and who might be willing to use some of the influence they have while on the council to help the prosecutor get access to fugitives and to put of evidence.

Janet [00:24:27] Priya also had a broader question about these kind of critiques of the courts that that emerge.

Priya [00:24:34] Last but not least, how would you address criticisms of the ICC as a neocolonial court?

Fergal [00:24:40] Well, Priya’s has got a good point there. We have to remember, this is a court of one hundred and twenty three states, parties, each of which has an equal right to participate in the Assembly of States Parties. This is a court, which is an African court. It’s an Asian court. It’s a South American court. Central American court. North American court. It is not a European court. And we have to do more to manifest that legal reality on the ground. And I believe if there are opportunities to hold portions of trials in other continents, we really need to do whatever we can to achieve that in cost effective ways. I think it’s very, very important that we address the problem of geographical diversity within the workforce of the court. Seventy five of the one hundred and twenty three States Parties are either unrepresented or underrepresented within the court’s workforce. It’s very important that we address that geographical diversity. I think it’s colossally valuable in each situation team to have individuals who are nationals of the situation country. They bring a tremendous amount of knowledge about the religious and ethnic and political background to the events in the situation country. They speak, sometimes they speak three or four languages of the situation country. In my experience, they are hugely important people to work with in order to carry out investigations faster while you’re on the ground. Now, by bringing in people from the situation country, we are also building the justice leaders of tomorrow in that situation country. We are building the judges and the prosecutors and defence lawyers and the police chiefs of tomorrow. And if you want to build the justice leaders of tomorrow, you have to start today. And it’s very important that we give people from the situation, country roles within the Office of the Prosecutor, which involves significant decision making. We bring them in. They’re not simply treated as some kind of resource knowledge. We train them to be leaders. And I think that’s tremendously important. And we do have to do more to make sure that that it is clear to everyone that this is a court of one hundred and twenty three States Parties.

Stephanie [00:26:51] While we are on court critique, one of the other critiques that you hear a lot about kind of all international trials, but the ICC in particular, is that trials take an immensely long time. And I saw that in your application letter that you’ve written about how to shorten international trials. Can you share some of the strategies that you have for actually shortening court cases if you do become the prosecutor?

Fergal [00:27:17] Yeah, I mean, I was involved in the Butare trial at the ICTR. That trial started in 2001 and it ended in 2011. And when the trial started, a number of the accused had already spent several years in custody. Now, similarly alarming statistics apply to other proceedings from the ICTR. And indeed the ICTY had certain periods of pre-trial detention, which also raised significant concerns about the rights of an accused to trial without undue delay. To me, it’s tremendously important for victims, for the suspect who’s sitting in their cell awaiting trial and for the States Parties who are paying the bill, that the proceedings be speeded up as much as possible. One of the aspects which came out of the international expert report is delay due to disclosure problems. Disclosure is one of those issues. By disclosure, I mean the disclosure of inculpatory and potentially exculpatory evidence by the prosecutor to the defence lawyers, that’s known as disclosure or discovery, in some countries. Disclosure takes up possibly 25 or 30 percent of all prosecutorial resources. It’s a hugely important issue. And as the independent experts noted in that report, some of the delays, including in cases which are at the pre-trial stage currently at the ICC, have resulted from problems in the disclosure process. I would bring together a conference of experienced defence lawyers who have litigated disclosure issues, judges who have ruled on disclosure issues and prosecutors as well. And I want to try to get everyone, as well as somebody who’s an expert in the various technologies which are used these days for disclosure to see what can we do with artificial intelligence and other forms of cutting edge software to make sure that defence teams get the evidence that they need as quickly as they can so that there they can carry out meaningful investigations at an earlier stage. That’s one thing I’d do. I’d also ensure that trials are as focussed as possible on the matters which are truly an issue. I’ve sat through hours and hours of proceedings where a witness is cross-examined on an issue which is utterly peripheral to the trial itself. So better courtroom management is extremely important and we can’t say that’s the job of the judges. Yes, it is the job of judges, but it’s also the job of the prosecutor to do everything that the prosecutor can do to ensure that trials are focussed as much as possible and that there are a range of different issues. I won’t go through all of them, but we actually published – David Tolbert and I, David Tolbert, a well-known figure in this field – published an article back in 2009 setting out quite a lot of specific suggestions as to how to reduce the duration of pre-trial trial and post trial proceedings in international courts.

Janet [00:30:11] How do you feel that the process has gone so far for you? Are you happy with with the way that the nomination process has happened, do you welcome other candidates beyond the four who have been chosen by the Committee to Elect the Prosecutor?

Fergal [00:30:26] Well, we all want the next prosecutor to be a person who has who has shown excellent judgement, courage and unswerving fidelity to the Rome Statute at every single stage of the process, whether they’ve acted as a prosecutor, as victims or in the other capacity. We want to get the right person, a person, a seasoned professional of excellent judgement and leadership skills and who knows how to manage an office and who’s been through the trenches in a number of different international courts. I believe that we need to give the one hundred and twenty three States Parties every opportunity that they need to make the right decision. I’ve made it clear to the Committee and to the Bureau that I am here to help the process as much as I can. And I will I will be happy to. I’m at their disposal for whatever steps they decide to take in the future.

Janet [00:31:17] After recording this interview with Fergal, we received a number of questions from you our online, Asymmetrical Haircut’s community.

Stephanie [00:31:24] So we called Fergal back and he graciously accepted to talk to us again. Thanks very much, Fergal.

Janet [00:31:29] With the Special Tribunal for Lebanon. But this is a personal question from her and she brings also her experience as a spokesperson for the ICTY, the Yugoslav tribunal. Not surprisingly, she asks you, what do you think about public information and outreach? The independent expert review suggests that you need a spokesperson for the OTP – going to have one?

Fergal [00:31:51] I think having a spokesperson within the Office of the Prosecutor is a good idea. I do think that public information and outreach is a critically important part of the Office of the Prosecutor’s work for a couple of reasons. First of all, there are people who who genuinely want to know what’s going on with the court, and they want the most up to date information. And the prosecutor has got to be able to provide that in a way which doesn’t prejudice ongoing proceedings. And we have jurisprudence outlining broadly what the prosecutor can say, what the prosecutor can’t say. But secondly, there is a tremendous amount of deliberate misinformation about the work of the court, which is up there on social media, and it’s out there on traditional media as well. And it’s very important that the Office of the Prosecutor is able to counter that deliberate misinformation. I believe that that misinformation is only going to get more extreme and more serious as we move ahead. Now, the forms of communication by the prosecutor can take many forms. One important area is social media in the language of the situation country. If we want to reach out to the under twenty five segment, which I think is a critical segment in terms of transitional justice, then we do have to reach out using the tools that they use to get their information. And that includes largely social media in their own languages. So that has to be exploited as much as possible. And finally, there should be more opportunities for the press to ask questions to the prosecutor or the prosecutor’s spokesperson by way of traditional press conferences. I think they are a key element. As we go ahead.

Stephanie [00:33:39] Another question we had from other NGOs during the ASP- organised hearing, you indicated that you would have a conflict of interest with regard to the Kenya cases. How do you intend to navigate that, should cases pertaining to the Kenya situation arise?

Fergal [00:33:55] Yeah, I want to just clarify that there is, I represented clients in one Kenya case. That is the case concerning Musawrah and Kenyatta. That case is currently dormant. Charges have been withdrawn against both of those accused. Should further evidence come to light in the years ahead, I would defer completely to the deputy prosecutor on that particular case. Neither the statute nor the rules of procedure and evidence envisage the recusal of a prosecutor or a judge from an entire situation. So it’s just one Kenya case. But generally speaking, look, I’ve been I’ve been a prosecutor. I’ve been a victim’s representative. I’ve represented defence lawyers. And I’ve said I’ve taken an oath to serve as a judge of the Kosovo Specialist Chambers. So I’m completely and fully aware of the requirements of independence and impartiality of the prosecutor of the International Criminal Court. I take those requirements extremely seriously, and I think my record has shown that in my execution of my professional responsibilities, I have an unimpeachable record and I will completely apply that to every single situation regardless of where it is in the world.

Janet [00:35:16] Also during those hearings, you said that you’re going to spend about a third of your time on the road. So how are you going to make sure that things run efficiently back home?

Fergal [00:35:25] It’s a difficult balance and it’s an important balance to make. Certainly, it’s very important to be on the factory floor, if you like, which is to say informally dropping in on teams within the Office of the Prosecutor, not to micromanage, but simply to see how they’re getting along and to offer encouragement to them and in order to remain informally informed as to how things are going in the office. So that should certainly take up at least another third of the prosecutor’s time. So there will be, as I see it: visit every situation country, at least one per year; spend a very large amount of time within physically within the Office of the Prosecutor talking to staff at every level, in every team within the office; and then the rest of the time will be spent on the core business of increasing the quality of the investigations and prosecutions which are carried out by the Office in every in every other way that that improvement can be delivered.

Janet [00:36:29] Mark Kersten asks whether you actually believe that systemic or institutional racism actually exists at the ICC? And if so, what concrete measures you’ll take to redress that?

Fergal [00:36:41] Well, I think Mark doesn’t quite hasn’t quite identified in this question what he means by systemic racism. He could be referring either to the geographical inequity of the staff within the courts or he could be referring to the court’s investigative focus on Africa. Now, we do need to keep in mind that six States Parties from Africa, referred crimes on their own territory to the court. Two Further situations which were Libya and Darfur were referred to the court by the U.N. Security Council. Now, it’s it’s really important that the prosecutor, when receiving a self referral or a U.N. Security Council referral, takes those referrals extremely seriously. So I don’t fault the current prosecutor or her predecessor for undertaking investigations in those countries. But the fact remains that today, or rather for the first half of 2021, the Office of the Prosecutor expects that it will carry out active investigation in nine situations. Seven of those are in Africa. So we do have a situation where a great majority of the court’s work concerns Africa. And one might say, well, that means there’s too much of a focus on Africa. But, you know, the crimes are extremely grave and African victims deserve justice as much as anyone else. Nevertheless, I don’t believe that the Rome Statute was ever intended to apply exclusively to one continent. So I do think it’s important over the next nine years to look very carefully at opening more investigations outside the African continent in order to better reflect the fact that this is a court of 123 states, parties across five geographical regions.

Stephanie [00:38:43] We also got more questions about what you would do with sexual harassment. And we asked you before about that. But the question is a bit more specific now. What would you do if you found out that Office of the Prosecutor staff, if you were the prosecutor, are involved in workplace misconduct?

Fergal [00:39:00] This is this is a very important issue. And I think the independent expert report contains some rather direct and very concerning findings concerning workplace harassment and bullying within the Office of the Prosecutor. And it’s absolutely essential that the next prosecutor takes this extremely seriously. Cultural change starts from the top and change is most effective when it is driven by senior leadership. So the next prosecutor is going to have to be extremely firm on this issue. In respect of any particular incident of harassment, I think it’s important to move quickly, to put in place interim measures to protect the victim of the alleged harassment. It depends on exactly the relationship between the alleged perpetrator and the alleged victim, and it also depends on the precise nature of the harassment or if it amounts to sexual violence that that violence which has taken place. One must also consider where acts of harassment or violence have taken place on the territory of the host state, in which case you must involve the Dutch authorities to bring them completely into the picture as to what’s going on. It’s very important to work in conjunction with the human resources section of the Registry to make sure that there is consistent implementation of harassment and abuse measures across the court. So I do think it’s important that we act quickly and firmly and that we deliver a message from the top that this kind of conduct, which is to say bullying and harassment, has no place within the office.

Stephanie [00:40:46] But would you put special measures in the top? You said that more protection for people who come forward. Then what happens to the people who are accused? Does everybody get suspended for a while? I mean, have you thought this through?

Fergal [00:40:58] Yeah, of course. So whistleblowing protection is extremely important to anyone who wants to make a complaint, must be made, you know, fully aware that there will be full whistleblower protection for anyone who does that. There is a duty on staff within the court to report harassment. We have to learn from the measures which have been taken by the United Nations, including the Secretary General’s bulletin, which was released in September 2019. And we need to update the court’s regulatory structure to reflect international best practise and in particular how the United Nations has handled this issue. Furthermore, there must be a complete understanding that training on workplace harassment isn’t some simply a tick the box exercise. Training must be taken extremely seriously by every single member of the office so that what one learns in harassment training within the office is reflected in the workplace. And this is a matter which is not just about creating a workplace which is ethically a good place to be; it’s about a more productive workplace, because I truly believe that staff who are facing harassment or who are working in a workplace where they believe that harassment exists are far less productive than staff who are working in a happy and inclusive and therefore highly motivated environment.

Stephanie [00:42:27] When we talked to you before, you spoke about bullying and that you have maybe seen that in a previous workplace and you regret the way you handled it. What would you do differently now?

Fergal [00:42:42] Well, as a leader, as I said, you have to make it clear from the very top that this is a very serious issue. I would make that clear in all of my interactions with staff. I would ensure that the training which is within the Office of the Prosecutor, is much better. I would to ensure that everyone understands that this is not just an option, but it’s a duty to report instances of harassment and bullying. And really, it’s it’s a cultural change which must be ingrained across all the staff. We’ve seen a tremendous increase in awareness about this issue over the past couple of years. The the work has not been completed. The work is has only really started. But I’m absolutely convinced with complete dedication by the leadership within the court that we can turn the corner and implement a genuinely inclusive and happier workplace in respect of these issues.

Janet [00:43:42] One aspect that may be key to your role as a prosecutor would be financial stewardship. You were at CIJA, an investigative NGO building evidence to prosecute international crime cases until December 2019. We’ve seen some allegations of fraud connected to some of the individuals working at CIJA in some media reports. What what do you say about those reports?

Fergal [00:44:04] Yes, I listen to the podcast, which Nerma Jelajic did with you a couple of weeks ago, and I defer to Nerma’s understanding of the situation from the side of CIJA.. I worked at CIJA from the start of 2017 until the end of 2019. So for those three years, pretty much exactly three years there, I didn’t hear a single word about any investigation concerning fraud into CIJA. It wasn’t raised once. It was only after I left the organisation that I read about this in the media. Naturally, I support all fraud investigations where merited by the facts into the expenditure of money concerning Syria. The alleged incidents, which Nerma referred to, I think took place in about 2014 or 2013, which is to say, three years before I even arrived at the organisation. My role at the organisation was to direct investigations within the Syria regime crimes team and analysis of the evidence which was being brought out of Syria. And I was not actually involved in financial management to any significant extent.

Stephanie [00:45:21] During the ASP organised hearing, you raised the question about whether Preliminary Examination should be public. Given the recent state of withdrawals that we’ve seen after they made the announcement of the Preliminary Examinations, do you think they should be made public?

Fergal [00:45:37] On one hand, we’ve seen two State Parties withdraw from the Rome Statute after preliminary investigations have been launched into crimes on their territory, which would suggest that, you know, that was obviously a negative outcome from the perspective of universality of the Rome Statute. On the other hand, the theory is that if there’s a Preliminary Examination going on, that that will deter crimes being committed on the ground. Now, in my view, preliminary examinations have one enormous weakness, which is that they allow for evidence to degrade and to be destroyed and to be lost because the prosecutor does not have investigative powers, during the Preliminary Examination. I would prefer to move to a model of very, very short Preliminary Examinations, and then you begin the investigation and the deterrent effect of the court continues during an investigation. And simply because the prosecutor decides to investigate does not mean that the prosecutor is going to prosecute. It means that the prosecutor is collecting evidence. And in an ideal scenario, the prosecutor will not, in fact, carry out prosecutions. The prosecutor will give that evidence back to the situation country so the situation country can carry out the trials on their territory. So really, if there’s a very short preliminary examination, it doesn’t matter greatly whether it’s public or not public. And I do think it’s an issue which needs to be fully explored with the benefit of the experience of the Office across all of its situations. So if elected as prosecutor, one of the first things I will do is ask for a full briefing by staff within the Office of the Prosecutor as to how they see both the advantages and disadvantages of public versus non-public preliminary examinations.

Janet [00:47:33] Maybe that complementary to that question, one came in from David Borden. He was asking whether you think that if you’ve done the Preliminary Examination and it says, you know, the results say you should open an investigation, should you always do that, despite resource constraints, despite cooperation issues?

Fergal [00:47:54] There are two main articles which govern the initiation of investigation. One is Article 53, which deals with referrals, whether it’s a referral by the State Party or referral by the Security Council. The words used in the Statute are the prosecutor shall open the investigation. Now, the other main road to the initiation of investigation is Article 15, which is the propriu motu power. And the words used in the Statute are the prosecutor may initiate an investigation. So if we look at what the Appeals Chamber has said about this, they issued a judgement on the 5th of March this year on this issue. And it appears that the presumption does exist in the case of referrals, whether by a State Party or the Security Council, but the presumption is slightly different where it’s the propriu motu power, where it’s really up to the prosecutor – there is greater discretion really for the prosecutor. At the end of the day, we do face the resource constraint issue. I do believe that it is better to open an investigation and then hibernate if necessary. That’s what the IER suggests. As the as the experts note, it is not a happy position for any prosecutor to be faced with credible evidence of major atrocities which have taken place and not to have the resources necessary to properly investigate. But I do believe that the the least bad option is to collect the evidence as quickly as possible and then to hibernate the case, until you have more, to hibernate the situation, until you have more resources to proceed with cases within that situation.

Stephanie [00:49:41] And our final additional question after which we will let you go is from Sterling Mancuso, a student at the University of Toronto Faculty of Law.

Sterling [00:49:50] My question for the candidates is, assuming you are elected at the end of your nine year tenure, what are three criteria you would like the world to use to judge whether you were a successful or unsuccessful prosecutor?

Fergal [00:50:07] Well, one criterion is, has the prosecutor gained and held the respect of States Parties and non-parties alike for unswerving fidelity to the Rome Statute? Another criteria is, has the prosecutor succeeded in delivering the most effective and cutting edge investigative unit to be found anywhere in the world? I see no reason why the Office of the Prosecutor should not be the best investigative unit in the world. And thirdly, has the prosecutor really made a clear difference on the question of ending impunity for atrocity crimes in the world. And if so, how can we see that impunity has come to an end in different situations across the world. Those are three criteria I think that that one should look at when assessing the effectiveness and efficiency of the next prosecutor.

Janet [00:51:09] Well, thank you very much, Fergal, for answering all those additional questions and thanks to our community.

Stephanie [00:51:14] We always kind of round up our podcast with Asymmetrical Haircuts questions. And as you’re on our show, we get to ask you what we want. So this is going to be – somebody likened it to an American job interview – some of the questions. So we get a bit of a job interview in the end. Our first question is, what didn’t we ask you, but we should have in your opinion?

Fergal [00:51:36] I did not have an answer. You can ask me what I have in this place next to me. And it’s a it’s a finely chopped tangerine prepared by my my lovely wife.

Janet [00:51:48] And another of our questions is, which is what Stephanie means by the the U.S. job interview style questions. What is the mistake that you have learnt the most from?

Fergal [00:52:03] The mistake I learned the most from I think I was assuming in in one situation I was involved in that the prosecutor’s case was as strong as I thought it was. I had come from the ICTY and I had been involved in the Bosnian Serb leadership cases over the course of nine years. We did mainly leadership cases. We did a few mid-level cases. We did some guilty plea cases. We did everything. But basically we were prosecuting Bosnian Serb leadership and we had extremely strong evidence. We had very organised teams and we knew how to deliver a conviction. And when I came to the ICC, I frankly, I’ll be honest with you, I had assumed that the same level of depth and quality of evidence was there. And at that time, I after several months into that, I realised that it wasn’t there. And that, combined with dealing with the victims in that particular situation, convinced me just how important it is that the prosecution of the ICC gets extremely powerful evidence against the accused and is able to deliver convictions because ultimately, if you don’t deliver convictions, your victim community is going to be deeply upset with the situation.

Stephanie [00:53:20] So our final question is always, what are you reading, watching? And in that sense doesn’t have to be doesn’t have to be legal, but it can be. We also take whatever you’re reading for fun or watching for fun. We’re just curious what’s on your nightstand.

Fergal [00:53:37] What I’m reading for fun right now is the final report of the Independent Experts group with all of its three hundred and seventy five pages. At the moment, I haven’t really had time to read anything for fun, but the last extremely influential book I read was Thinking Fast and Slow by Daniel Kahneman. I found it to be an extremely useful book in terms of teaching oneself how to think more effectively about challenging issues.

Janet [00:54:07] Thank you very much for answering the questions that we managed to gather from our community and we’ll hope to hear from you again, whatever the result is.

Stephanie [00:54:18] Yes. Good luck with the process going forward. However, it goes forward at this point and we will keep an eye on what happens.

Fergal [00:54:26] Thank you very much. Thanks to all of you. All of us. Bye bye.

Janet [00:54:33] This was an episode from the Prosecutor Files, a special series in which we interview candidates for ICC prosecutor. We are Asymmetrical Haircuts, your international justice podcast. And I’m Janet Anderson.

Stephanie [00:54:45] And I’m Stephanie van den Berg. If you want to check out our huge archive of interviews with international justice experts or read the show notes, please go to our website, Asymmetrical Haircuts Dot Com.

Janet [00:54:55] And there you’ll also find all the ways to subscribe and ensure that you never miss another episode or update. You can give us a rating on any major podcast platform or you can follow us on Twitter: @AsymmetricalH.

Stephanie [00:55:07] This episode in the series of The Prosecutor Files has been produced with sound editing support from Open Society Foundations. Music is by audionautix.com. Stay safe.

Janet [00:55:17] And have a great day.

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.

For The Prosecutor Files we want to interview all listed candidates for ICC prosecutor. The four original candidates, plus the five who were added later, were all approached but not everyone agreed to appear on the show. We will continue to try and interview them and any other additional candidates as the process continues – Stephanie and Janet

This series of podcasts has been produced with sound editing support from the Open Society Foundations