The Prosecutor Files: Robert Petit

Robert Petit (below) and Janet during video interview

One of the additional five candidates for prosecutor of the International Criminal Court, added to the original four because there was no clear state consensus, Robert Petit is an international prosecutor with more than 20 years of experience at international courts and tribunals. He’s been involved in war crimes probes and prosecutions in Congo, Rwanda, East Timor, Sierra Leone and Kosovo since the 1990s.

In his talk with us he refers extensively to independent expert review of the ICC which came out in September. Be sure to also check out his answers to questions from the International Criminal Court Bar Association and to the NGO’s united in the Coalition for the International Criminal Court.

His reading recommendation is Vikram Chandra’s chronicle of the Mumbai underworld Sacred Games.

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.

Robert Petit [00:00:00] Obviously, the prosecutor of the ICC is is just about as big a game as you get. I did not see myself not again offering to serve or at least being part of the conversation, because at least especially in this particular time, there is a lot that needs to be said.

Sabine Nolke [00:00:16] We looked at all the qualifications. It was a big picture.
Priya Pillai [00:00:27] The capitalised Prosecutor.
Diane Amann [00:00:30] 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 Pillai [00:00:42] I mean, a list of really, really incredible sort of characteristics.
Sabine Nolke [00:00:46] We can’t conjure them up.
Diane Amann [00:00:48] And we can only hope that that person will have some pixie dust.
Sabine Nolke [00:00:52] Our job was to come up with the most highly qualified candidates. We did that.
Stephanie van den Berg [00:01:01] Welcome to our special edition of what we are calling the Prosecutor Files for Asymmetrical Haircuts.
Janet Anderson [00:01:06] In this series, we’re trying to interview all the candidates for the International Criminal Court prosecutor. And in this episode, we’re talking to Robert Petit.
Stephanie van den Berg [00:01:14] Hi, Robert.
Robert Petit [00:01:15] Good morning. Good afternoon.

Janet Anderson [00:01:17] Robert is Canadian and currently senior official at the United Nations Follow-on Mechanism for the Democratic Republic of the Congo. He used to be a prosecutor dealing with crimes against humanity and war crimes at the United Nations missions in East Timor, the Special Court for Sierra Leone and even the ECCC. He’s one of the five additional candidates that the Committee to Elect the Prosecutor interviewed, but he ended up first on the long list rather than the short list.

Stephanie van den Berg [00:01:45] And the standout line in his application letter is: while there is clearly an aspirational aspect to the international criminal law that has a broader relevance than what simply happens in court, those aspirations cannot be realised without a solid foundation and core criminal litigation work.

Janet Anderson [00:02:03] First and most basic question, Robert, is why on earth do you want this job?

Robert Petit [00:02:08] I can’t take a hint since it is the second time I applied for it.

Janet Anderson [00:02:11] Well, I was going to ask that. That was what I was going to ask. I mean, you know, why do you want it? And it’s you have you got an increased chance this time?

Robert Petit [00:02:18] Oh, I wouldn’t I I am not going to comment on that. I wouldn’t know. But I think certainly contrary to the first time, the process is a lot more fluid than than it was last time. Well, for the same for the exact reason I mentioned during this this virtual town hall, I mean, wanting to be a prosecutor is why I went to law school. And if whatever skills abilities I have can be, can help in bringing justice to victims, I, I honestly consider it a privilege. And if I have an opportunity to do it, whatever it is, I feel a responsibility, I must step up. And see if I can, if I can, if I can serve. You know, and obviously the prosecutor of the ICC is is just about as big a game as you get. I did not see myself not again offering to serve or at least being part of the conversation, because at least especially in this particular time, there is a lot that needs to be said. But I’ll be you know, again, I feel privileged to have been able to do this in the different places and different ways that I’ve been doing it. And if it’s not disposed, I’ll be happy to keep on and continue my career somewhere else.

Stephanie van den Berg [00:03:35] And this is not the most easy time to be an ICC prosecutor. What would you do if you or other staff or even your family is sanctioned by the U.S.? I mean, maybe the prospect is less likely with the new administration, but it’s hard to say. They’ve never been quite fond of the ICC, so.

Robert Petit [00:03:55] Hmm. Well, I mean, it’s it’s very unfortunate, a very, very unfortunate stance that was taken by the the outgoing administration. We’ll see what the incoming administration does. I suspect the engagement will be perhaps more akin to what it was under Obama. But in any event, you know, you sign on to being a prosecutor, knowing that a lot of people are not going to be supportive of your work to various levels. I think it’s it’s certainly nothing compared to those prosecutors who are working in the trenches today and have to leave the court side by side with the accused that they’re prosecuting and and have to live within the communities that are that are both with perpetrators and victims. And so it’s unfortunate. It’s something that you have to make, you know, to clearly take a stance against.

Janet Anderson [00:04:59] And how would you get political support across? You know, internationally, you’ve got a lot of very politically sensitive cases coming up in the pipeline, Palestine, Philippines, Ukraine and even the Afghanistan one. So how would you go about getting support?

Robert Petit [00:05:16] Well, you get support, I think, by being as transparent as you can about the evidence and the way you’re interpreting the law and your mandate. You have a task to do. You should be guided by no other consideration, obviously, than the evidence and and the law and the interests of justice in interpreting your mandate. You have to be very informed about, because the court is a political actor as soon as it steps into a situation. That’s not what should drive it, obviously, but it needs to be conscious of and especially the OTP. So you get the best, the best understanding, if you want, of the political situation, the the actors and how fluid it is, to best be able to advance the interests of of the court, and I think there is a core principle that at least one hundred twenty three states have bought into, which is there must be accountability for mass crimes. That represents an enormous basis of support for your action that you have to be able to muster and bring to bear the appropriate way at the appropriate time. So, you know, I think we saw it eventually, the response of state parties to the actions of the US in support of the court, various state parties and then the ASP. So I think by being able to discharge your mandate in the most efficient way possible, having clear results and making the best use of your resources, you have the best arguments to motivate support.

Stephanie van den Berg [00:06:55] And have you thought already about how you would kind of galvanise political support, given all the very politically sensitive cases in the pipelines? We have, of course, Afghanistan that the office is investigating, but we also have Ukraine, Palestine and the Philippines coming up.

Robert Petit [00:07:14] You have to be as transparent as you can without obviously, you know, jeopardising the integrity of your cases in in why these cases are ongoing and why they’re proceeding, why they matter, and how you are applying simply the law and your mandate to the evidence. But the court, the political context is obviously relevant always. And you have to have the best information possible in assessing that political context in how you present your your moves, your case, if you want, and how you best muster, as I said, the support that you’re going to need. Because, you know, the ICC has always been dependent on the kindness of strangers, but in this case, well, the states parties. So you must have obviously the support of the state parties. So your best argument, again, comes down to the fact that you are doing the best job possible in accordance with the evidence and the resources that you have. And hopefully the results follow, which are you are often your best argument.

Janet Anderson [00:08:13] We asked the community listening to the podcast if they had some questions they’d like to put to candidates, international lawyer, Priya Pillai rose to the occasion. She even recorded her questions. So her first one is this.

Priya Pillai [00:08:26] If elected, what is your plan and what are your priorities for the first hundred days?

Robert Petit [00:08:33] Of course, now we’re all you know, we’re all sounding a lot more intelligent than we did, you know, a couple of months ago before the Independent Experts report. But I have a great deal of of of confidence in the experts report, knowing some of the people who actually, at least for the OTP part, worked on it. And just the results to me is very useful, I think, and very grounded in the reality of what is the OTP, with the caveat – and I think we all need to be aware of this – I think it says 70 or 80 staff members out of 400 and some participated in this. So how representative is the input? You know, it’s certainly something that we would try to assess in the transition period. Is there some things that were missed by the experts or that should be qualified? Or, you know, what’s I’d try to get as, I’m a big believer in doing my homework, so I would try to get as much possible input. What I think would certainly be one priority would be to address the climate, the working culture of the office, because everything flows from that. You cannot get the best out of people and therefore you don’t have your best chance at success. If people are working in, quote unquote, a climate of fear and if they are not motivated to give their best. In some ways it’s perhaps the easiest thing to change and probably also the hardest. At the same time, it must come from the top. You know, the culture of an office starts with how you treat people. And for that, people must be aware of your perspective on this. And I would try to address this at the very beginning, addressing as many as people as possible and initiating feedback from them as much as possible. I would certainly hope to have a lot more contact with the staff and certainly encourage whatever form of contact would be would be useful and appropriate and safe, considered safe for them to give me input. Because, as I said, if you’re not getting the best out of people despite the circumstances and you know, these are these are these are important jobs. These are well-paid jobs. The environment is is good. The issues that needs to be addressed can be addressed. But first, you need to know the people are perceiving it and the solutions that they they envision. So my my first one day one, if you want a priority, would be to pass on that message that I want staff to feel empowered, to feel engaged, to feel respected and to feel valued. And that’s going to be the unwavering focus from from from day one to the last. Within the first hundred days, I would certainly hope again, after having during the transition, try and figure out what the OTP has done and why it’s done it, because you’re going to need to know, understand the reasoning behind some of these decisions, if you’re hoping to change it. And you have to be able to understand why people bought into that reasoning if you’re going to change their minds. So people have been doing things a certain way that obviously has created some issues. Why did they think this was a good idea? Why did they persevere in the face that there’s been a lot of criticism and some of these specific issues. So why hasn’t this changed over time? To be able, again, as I said, to get the support you need to change. But it’s going to be a team effort, as with everything in this business. So I would certainly try to understand that all of that during the transition and then from day one, try and implement some of the key of what I consider the key recommendations of the of the experts structurally first, because that’s maybe the easiest thing. Certainly, I think a reassignment and revaluing of the duties of the deputy prosecutor would be would be would be important.

Janet Anderson [00:12:32] Can I just ask a quick can I just ask a quick question? You say the deputy prosecutor, you could have two. Would you think about doing that?

Robert Petit [00:12:40] If I had money for it, sure. But I would much I don’t think anyone has much appetite to fund that. And I would much rather fight for three or four additional investigators at this stage than I would for a deputy prosecutor. I realise it’s in the interests of some states to have another position of prosecutor. And there’s a lot to be said as well substantively. But in my experience, in different places that I worked in and given the recommendation of the experts, which I agree with, I don’t think that’s a battle I’d pick right now. I would certainly try to maximise the resources I have now, which is one deputy, which I think can be best better used as being the head of the three divisions as as outlined by the experts. Not so much with the the the administrative side of things I think. I would think about having a perhaps a redefined chef de cabinet position that would be a more managerial position to deal with certain things. I would want a deputy who would be the prosecutor or juge d’instruction to be much more focussed on the substantive work. So priority number one, changing the culture and making it known where I want to the office to go. Second, anything that administratively speaking is within the remit of the OTP. I would as well create as soon as I could a group of people who would be tasked with streamlining and assembling and streamlining all the different policy papers, operational papers and lessons learnt that we have. Because I think it’s something that struck me that I was a bit surprised, I must say. You have to have a Bible. You have to have somewhere where everything is and where everything is explained and that you can refer to and be held accountable for having applied. And that has to be as thorough as possible. We have that in the federal prosecution service in Canada. We had that in different, different, different places that I’ve worked in. And it’s very important that it be a living document that people, that is a way to contribute it, to improve it, but that people can go and see and how – to not to confine their discretion – but to guide the exercise of that discretion, at least when it comes to the prosecutorial aspect of things. Right. So I would task a group to get a first draft of this, let’s call it a desk book, within, you know, hopefully within the six month period because everything is there. And I would want to be kept involved and and aware of this regularly. I would also.

Janet Anderson [00:15:37] OK, OK. Just Robert, I think we’ve got enough of the things you’re going to do. You’ve bashed it out. That’s OK. Let’s just take a space for Stephanie to ask a question.

Robert Petit [00:15:47] Well,.

Janet Anderson [00:15:50] Anyway, Stephanie,.

Stephanie van den Berg [00:15:52] So you spoke a lot about what you want to change and you spoke a bit about your management style. And it seems to be a mix of both. So I’m wondering, are you more than micromanaging type or the delegating type? Because there are things in your explanation of both. You want this handbook, you want a way to do things precisely. But you also would like to delegate maybe more managerial tasks. So how would you describe yourself when managing a team?

Robert Petit [00:16:25] I believe that success is a teamwork issue and failure is a leadership issue, in most cases. In this type of business, micromanagement will lead to failure. For first of all, for the most obvious reason, because, again, it demotivates people and you cannot get the best out of them because they don’t feel engaged, they feel directed. And that’s not you know, that’s not how you get the best out of people. Second, it’s just simply too much to be micromanaging an office of this type, and maybe I didn’t express myself, you know, clearly, but this desk book that I’m talking about, I specifically said that it’s something to guide you into discharging discretion. It’s not something to order you to do this. It will tell you, for example, it will set out the criteria for disclosure. Right. It will refer to the jurisprudence. It will refer to the lessons learnt. And then it’s within your responsibility to apply these. And if you can’t apply them to be able to explain why, and maybe then we can learn an additional lesson and improve on this and get another variation of things. So I firmly believe that a leader’s job is to enunciate a clear vision of what the aims are in this particular type, to be able to clearly enunciate how one views one’s mandate, what are the acceptable results, and that it is everyone’s responsibility – but starting at the top – to do your best to achieve those results. Again, you cannot do that if people don’t feel empowered and don’t feel respected, don’t feel valued. You know the trite phrase of having an open door policy. That’s what I’ve always done and everywhere that I worked with. I feel that you can only lead if you listen, if you’re ready to learn and if you empower somebody to find solutions in the responsibilities that you gave to them. It’s a no brainer. You can only succeed if you work as a team.

Janet Anderson [00:18:48] You’ve spoken about some of the, let’s say, cultural issues that may have been that may have surfaced in an analysis of what’s working and not working at the OTP. Are you going to look for new blood there in terms of staff? And most specifically, we had a question in from Owiso Owiso an academic to ask, as he puts it himself bluntly, how are you going to ensure that the OTP is not predominantly white as it currently is?

Robert Petit [00:19:22] Yeah. You know, it’s interesting, I think one of the one of the things that I value most about my various experiences, having worked in different countries, in different legal systems, in different mechanisms and alongside people from different cultures and backgrounds and religions and and gender is how much you learn and how better you can be at your job if you have all that diverse, the most varied input possible in how to do this. So if only from an operational point of view, I think it’s fundamentally important, fairness aside, that we have as an office as varied as possible a staff, so that we can best benefit from the different ways of achieving success that these perspectives would bring. There does appear to be, again, based on an external candidate, but based on the reports, the experts report and based on other information, there does appear to be an issue with geographical representation. It will need to be addressed as will gender balance need to be addressed. Those are two fundamental issues that I think I would hope by mid mandate to have a really concrete difference in how the office is shaped. Again, doing your homework, you have to figure out with the first what are the human resources aspect of all of this You are also talking about people’s livelihoods and you need to strike a proper balance between being fair and achieving fairness so that you’re going to have to identify the reason, because this is an ongoing problem. This has been, you know, and I may not know about the ICC itself, but certainly in other institutions that I’ve worked with, there’s a pattern that sets itself from the very beginning, consciously or not, but that has effects all throughout the existence of that particular body. And it’s very hard to correct. So I would certainly try and see what are the reasons why this particular state of affairs has developed within the institution and trying, in all due fairness to to everyone, to make sure that going forward, at the very least, for whatever becomes available in terms of posts, gender balance and geographical balance is a stated priority in any recruitment process. I would also see, again, within the limits of HR and within the limits of, after assessing carefully the contribution of everyone, certainly above P5 and above, who should be and how to go about promoting individuals to these P5 and above posts, but in any level and to try and…Not to try: To be able to achieve, as I said, at least in mid mandate, a much different representation, both gender and geographic within the OTP. But it’s not going to be an easy task and it has to be, as I said, to be done in fairness to everyone. But it has to be a criteria that cannot be, that has to be a priority.

Stephanie van den Berg [00:22:50] While we’re on the subject of the independent expert report, there has been a lot of talk also about, misconduct. So I’m going to be very Dutch and very blunt and direct. And just ask you, have you ever been accused of bullying or misconduct?

Robert Petit [00:23:07] No.

Stephanie van den Berg [00:23:08] And have you been in an office where you witnessed this kind of behaviour? And if so, what did you do at the time?

Robert Petit [00:23:15] Uh, you’re going to give me a pause, because with a thirty one year career in seven different four different continents, um. There has been. Yeah, there has been, for example, well, in Canada, in my section, instances of individuals who have felt to have felt the need to come in, consult with me about about how they felt that they were being harassed, not in a managerial position. The advice was sought, but just as a co-worker in terms of personal, more personal level and, you know, obviously in both instances helped them get get a resolution through the channels that were available and offered support in various ways.. I don’t wnat to go into the specific. If I get more time to think about it, I’m sure I’m sure they would be in different places. Um.

Stephanie van den Berg [00:24:25] Have you thought about we’re not talking about your own experience, but have you thought about ahead of when you you read about this culture of fear, you know, including also sexual harassment at the OTP, if you found that OTP staff were involved at the ICC, you know, have you thought about measures you would take to to prevent that, other than the open door policy, which you already mentioned,.

Robert Petit [00:24:49] Yes, prevent it, as I said from the I mean, you know, in these days of covid, you can’t get 400 people in the room. But, you know, the first thing I would do on that first day of transition, forget about being sworn in, would be to communicate to everyone, as I said, that it’s it’ll be my commitment to make sure that when they come to work, they feel safe, they feel valued, they feel respected, they feel empowered. And if there is any in anything that they think I should know – that’s not to bypass appropriate channels and resources that are in place – it’s to make sure that those are known, applied and improved if need be. Because that’s probably the quickest way you can get that done, is if somebody who is in power knows about it and any of the shortcomings of the available resources. But I would, as I said from the very beginning, tell them that that will be my commitment. I mean, there’ll be I’m not crazy about that zero tolerance phrase because I think it’s sometimes a copout to not making decisions. But I certainly would will take any allegation of any untoward behaviour, any harassment or bullying or discrimination with the presumption that they are true and act accordingly until proven otherwise. Being a prosecutor, especially doing sexual assault, you know that if somebody comes forward, you understand what’s involved in that, the cost that comes with somebody coming to tell you about their victimisation. And while there is instances of, you know, find me a prosecutor that hasn’t been lied to, I’ll find you somebody who’s never worked in the day. But you know, as a prosecutor, you know, that victims come forward, as I said, is a great cost. And because it’s true in most instances. Now, you may not always be able to prove it. And that’s probably the biggest burden of this job. But so I will take any allegation extremely seriously. I have to tell you, when I saw this this climate of fear, it’s so unacceptable in any institution, but in a place where you’re supposed to be prosecuting those or holding accountable those guilty of the worst crimes, it’s just unbelievable. I mean, I’ve known, you know, being around so long, one of the few privileges of being old, is that you do learn things and hear about things and their morale has been a problem at the OPTP for quite some time, for various reasons, but that it reached the level where staff has to be assured of being safe and anonymous, if they come forward to tell somebody about how they’re working, is just not acceptable. So I will take a very clear, strong, fair but unwavering attitude of not tolerating, taking seriously and not tolerating any kind of behaviour like this.

Janet Anderson [00:27:59] I want now to turn to more outwards rather than inwards. Part of your job, if you were elected, would be the public face of the ICC in many ways. How would you deal with that?

Robert Petit [00:28:13] I think, you know, having worked again in all these different places and some of them in situ, some of them on site where the crimes have been committed, so living amongst the survivors and the victims and the population, the concerned communities. You learnt very quickly that if you don’t have outreach and witness support and protection, if you don’t have that down from the beginning, you’re going to create yourself some serious problems down the road. And, you know, very quickly. So you learn to be.You learn the responsibilities that come with being that contact point, right, that that face, as you said, but at the same time, you learn that also when you’re a national prosecutor, when you first dealing with your first victim or their families. Right. You represent society. You represent a system that is going to try to give justice to a victim. So you learn very quickly. And I think that’s one of the things that a professional prosecutor brings to this job is a sense that you’re speaking not for yourself, but for a system for and for the interests of society. So it’s something that you learn that as I said, you’re not representing someone, but you’re representing something much bigger and being able to convey that, being able to explain your mandate, the way you view your mandate, the way you interpret it, what you can and oftentimes what you cannot do, which is the hardest part of the conversation. You cannot shy away from that, you have to be able to engage communities as directly as possible. And although I think the next prosecutor will need, you know, at least at the beginning of the mandate, needs to be very much focused on The Hague and the office and what needs to be done there, the other priority is always engaging as much as possible, directly as possible with affected communities, victims, their representatives. I’ve seen firsthand in Rwanda, for example, when we didn’t seem to have a clue about outreach, how what was happening in Arusha got completely distorted once it reached Kigali. Right. Where it would have been so simple to set up a TV and have an interpreter present and, you know, let’s get going. Something we eventually learnt in Sierra Leone. So I you know, if you cannot explain to people convincingly not expecting to make them happy, but being able to explain to them why you’re doing what you’re doing, how you see your responsibility to them and how you’re best able to exercise that responsibility, obviously, you shouldn’t be in that position. So I think it’s I think it’s a very fundamentally important part of the job. And I think I have as I said, I’ve been to work directly in these communities, having come face to face with them. Having to have to explain the job and the responsibilities, I think I’m, I would be well suited to do it.

Stephanie van den Berg [00:31:28] Priya had another question related to how you would represent the ICC. So let’s hear that now.

Priya Pillai [00:31:34] For civil society organisations, would engagement with the ICC look any different with you in charge?

Robert Petit [00:31:42] Well, again, to me, the two priorities, the priority for the prosecutor, at least in the short term, would be to try to clean up the house a little bit. So focus on The Hague. The only exception being engaging with communities and civil society organisations are a way of engaging directly with representative and getting the best, probably the best feedback about the needs, questions and expectations of communities. So I’m not I’m not aware of if, for example, there is currently a framework by which the prosecutor regularly on a planned way engages with affected communities. That’s certainly something I would I would envision targeting certain situations and certain format that could be different. Again, you know, getting to circumstances. But I think it would be a it certainly would I would find it useful to me as a prosecutor or at least to be able to have regular engagement with civil society and communities and in a formal way. And, you know, as I said, you have to be able as direct and forthright and transparent and engage as possible with the communities that you’re seeing or you’re seeking to represent. So I I can only not knowing that I can only commit to as much an engagement and an openness to whatever, you know, whatever these communities think are the best way to engage with them, I would certainly consider and try and work that into the other priorities that the job will entail.

Stephanie van den Berg [00:33:39] I have one quick extra question while we’re talking about outgoing and this is a really simple yes or no question, mostly for the benefit of the media and me as a journalist, will you appoint a spokesperson?

Robert Petit [00:33:52] Yes.

Janet Anderson [00:33:53] OK, thank you. Next question, Janet.

Robert Petit [00:33:57] Well that was easy.

Janet Anderson [00:33:57] We’re recording this just after the release of the preliminary examination report. Now, the big decision there was to no longer go ahead with potentially an investigation into alleged war crimes by UK service people in Iraq. And there’s been a lot of commentary that maybe this shows that prosecutor said it was really too difficult to assess the unwillingness. Maybe that was difficult to put to the judges. Maybe she was kind of avoiding this Afghan situation where the government there has invoked Article 18 to say, you know, you shouldn’t go ahead because we are willing. Now, basically, the question is, would you have made the same choice? And I know that’s difficult to answer because you’re not privy to all of the documentation. But yes or no? I mean, tell us what thought process you have around this.

Robert Petit [00:34:57] Well, you’re absolutely right. I can’t answer that question. You know, I you know, when it’s not your case, when you haven’t been when you haven’t had the responsibility of making those decisions based on the full knowledge of the facts, there’s nothing to be gained by second guessing someone else unless you yourself have the time to go through those facts and come to your own decisions. You know, this was a process that took years, that led to two different decisions. Well, two did not. Two decisions, I should say. Uh, I haven’t read the report. I’ve read the press release and I’ve read some comments on it. Again, I don’t think it does. I don’t think it’s useful to anyone to make to make an uninformed comment on this. I do note that the decision is subject to review. I think, obviously, if there’s new facts. So I think any prosecutor who will come in will have to take cognisance of all the files that may or may not arise. So I’ll certainly have a look at it if I’m if I’m in that position. But that’s not something I can comment on.

Stephanie van den Berg [00:36:03] Going back to other preliminary investigations, the prosecutor has now kind of, if you become next prosecutor, left you now with opening an investigation into Nigeria and Ukraine and possibly more in the pipeline, a decision on Venezuela, I think, or Philippines in the next year. But she also says she does not have enough resources. Any idea what you would do if you come to this position with all these nice preliminary examinations and not enough funds?

Robert Petit [00:36:35] Well, I think one of the certainly one of the most salient issues for the moment is what exactly are should be the purpose of preliminary examination and how should they be conducted and a clear application of perhaps a clearer, different standards. I fully agree with the expert report that there should be a timeline for these. That’s what we do in my office in Canada, the war crimes. Yes, we do spend time on figuring out what is the situation, but then we make a decision. So you need analysts and you need background and then you need to do to to make a decision. Obviously, the context is different at the ICC because there is a complementarity issue. But I think, as I said, clearer, more stringent standard and more focused on making a decision on, you know, in view of Article 17 rather than this maybe just more prospective aspect of complementarity that seems to have been driving the office, I think would be would be the priority. Once you have clarified that this is how you are interpreting your responsibility in preliminary examination, then, yeah, you look at resources and you make hard choices and you cannot be afraid of having to explain and justify these these these choices. You know, it’s true in national systems, the best funded national system still can’t do everything. So more so in these mechanism that are always short of resources for the gravity of their mandate. You know how you’re supposed to bring justice to hundreds of thousands, sometimes millions of victims. There’s no budget that can that you can think of that can really allow you to do that to the full extent of that victimisation. So it’s always about making choices. You weigh the gravest the gravity of crimes, obviously, the evidence, the likelihood of conviction. And you try when you’re making these decisions to weigh obviously the gravity of the cases, the likelihood of a conviction, the types of evidence you’re going to have and the potential result of the process on the situation itself. In the meantime, you make sure that whatever cases you’re not proceeding on at the time, you can preserve as best as possible so that you eventually can come back to it. But it is always about making priorities. It is always about justifying the best use of your resources that you have without stopping to fight for more resources. It just cannot be an impediment to do your work and use the ones that you have. And so, yes, there are some difficult choices. And if Fatou keeps on making decisions, there will be a they’ll indeed be a quite a brief to pick up.

Janet Anderson [00:39:51] Let’s turn to one of the critics of the court, which is partially based on the kinds of decisions that you’re just talking about. Here is Priya again.

Priya Pillai [00:40:01] How would you address criticisms of the ICC as a neocolonial court?

Robert Petit [00:40:07] I think, again, the best argument for this is to be as transparent as you can about the cases that you have and why you selected them and why you’re proceeding with them. And the court being a court of last resort, should empower and should actually motivate state parties to to obviously exercise their complimentarity responsibility. But I think if on a case by case basis, you should be able to make the argument why you picked that case, why you’re proceeding with that one. At the same time, you should be able to explain why you’re not taking this other case and why your brief, your docket looks the way it does. I think there was an argument, a sound argument to be made that the focus of earlier cases on Africa were for a reason. However, it’s quite clear that the current prosecutor has had a broader perspective or had occasion to have a broader perspective and and took some of those decisions. So it’s an issue because, as I said, the court as a political impact in its work and something that you have to be able to address again based on on a factual basis.

Stephanie van den Berg [00:41:36] And now let’s turn to the process of this prosecutors election, you’re back in the race. There are some comments or some people feel that that’s also problematic because the people who are then moved from the long list back to the list are somehow tainted. The CEP comments about you, I don’t exactly recall them, but there weren’t very flattering and kind of if I’m being very journalistic and bluntly summarising them was that you would be a lot of same old, same old, and they weren’t sure that you could bring enough kind of innovation. So how do you think the process has gone and the fact that those comments were brought out? Do you think that affects your chances?

Robert Petit [00:42:22] I think I think the idea originally of having it processed, somewhat detached, let’s say, from from the from the past and from the past procedure and from the ASP actually or member state was an interesting idea. I really liked the idea of the committee having this additional board to advise them. I think that was there was an extremely interesting and something that I would I would think about emulating in certain situations, for example, in addressing some of these issues in terms of representation within the office. But, you know, it is what it is. Now, the hopefully consensus will still apply to this decision. I think that would be very useful to have a very unanimous mandate for the next prosecutor. If not, you know, again, you play the cards that you’re dealt with and we’ll have to see how how that would play out in terms of support going forward. I think the institution will be supported. I don’t I don’t have any doubt about that. And to be honest, OK, so obviously maybe I need to up my zoom game, but the committee had a certain perception of thirty one years of a career that they got after a forty five minute interaction. As I said, I’ve worked in the civil law system and common law system in a hybrid system, in ad hoc tribunals, in hybrid tribunals, in national court. I’ve been prosecuting Rome Statute crimes for 20 odd years. I’ve learnt a lot from all of these places and all these people that I’ve worked with. And I shamelessly tried to copy their best so that I could do my job better. One of the one of the prosecutors for whom I worked with, I won’t name names, but had this taught me a very good lesson that you always have to be open to change your mind and nobody gets it right 100 percent of the time. So I’m always open to learning ways to do better, to seeing how maybe I’m wrong and I could do something different again. The only aim here is to help deliver justice. So if you let your ego get in the way, you know, and I know it sounds strange to talk about, you know, a prosecutor without an ego, but the ego is about doing the best job possible and getting the result, not about your fame. So I’m not quite sure what the committee perceived and why. But I think, as I said, my track record speaks for itself, and I I know what I would bring to this, and hopefully I’ve been able to better express it now and in these past interactions than apparently I did during that that call.

Janet Anderson [00:45:38] And we have a final question here from a member of our community, Sterling Mancuso, who may be Canadian. He’s a student at the University of Toronto Faculty of Law, and he sent in this recorded question.

Sterling Mancuso [00:45:52] 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?

Robert Petit [00:46:09] Fair, productive and efficient,.

Janet Anderson [00:46:14] Can’t say better than that. Stephanie, do you have some asymmetrical haircut questions to ask?

Stephanie van den Berg [00:46:19] Yes, finally, we always ask the asymmetrical haircut questions on our podcast, and we are not going to let the prosecutorial candidates get away with not answering them. It’s a very job interview question. What didn’t we ask you? But we should have.

Robert Petit [00:46:36] It’s called laying a trap.

Stephanie van den Berg [00:46:39] Don’t give away the secrets of journalism.

Janet Anderson [00:46:42] Or rather, it’s called giving you an opportunity to opine on whatever you’d like to opine on right now.

Robert Petit [00:46:47] I think you’ve covered you’ve covered a lot of interesting grounds, as you always do. I’m not sure that I would that I would have said anything about anything else if only I would again emphasise the need for the next prosecutor to address the culture and the working environment. I can’t emphasise enough how I think for me anyways, how this is important. And the people there deserve better. The institution deserve better. And the communities that you’re alleging to serve, deserve better. So I would I would have liked more questions on that so I could repeat this ad nauseum, because I think it’s really is fundamentally important. The state parties have a right to to deserve better of an institution they’ve created and obviously the communities that we’re supposed to serve as well.

Janet Anderson [00:47:49] And do you have any professional mistake and I think you look back on that, you say that made me learn a lot from.

Robert Petit [00:48:00] I think there’s always a need to be clearer or as clear as you can and not being shy of believing certain points to make sure that people are working with you, understand exactly where you’re coming from and where you want to go. And, you know, maybe maybe it goes back to that that that CEP evaluation. But maybe because I’ve been doing this for so long and so many different places and, you know, to me, certain things maybe are clearer than they are in the minds of people I’m addressing. And I think I will always need to do better in terms of being clear as possible about about the work that we need to do.

Stephanie van den Berg [00:48:54] And then the final question is a much more softball question: what are you watching reading that you would recommend to our listeners? Are you going to be on brand and read legal texts.

Robert Petit [00:49:10] oh god no.

Stephanie van den Berg [00:49:10] Or are you going to tell us something completely different?

Robert Petit [00:49:14] No, obviously, especially because the way this process has gone, I’ve had to reprint and reread a whole bunch of things that I had, you know, a couple of months ago. And somebody is going to get a bill for my printing at one point. I’ve been reading, obviously, of, you know, everything that matters about this upcoming responsibility. Whenever my Twitter addiction gives me, you know, releases me or, you know, or when I try going cold turkey, I’ve been rereading Sacred Games, which is one of the most brilliant book I’ve ever read on so many levels. And if anyone knows, as I highly encourage you, if you don’t know what to do to read it, there’s also a series that’s been made out of it. But the book itself is just brilliant. And one of the few books that I’ve gone back to when I want to treat myself.

Stephanie van den Berg [00:50:15] I’m going to sound like a total philistine, but I don’t know that book, so I’m going to definitely look into it now that it comes so highly recommended. I think that’s it. Thank you so much for your time. And, um, uh, we hope that if you get elected prosecutor that you’ll keep speaking to all the stakeholders, including the media. We’d like a nice and vocal prosecutor,.

Robert Petit [00:50:39] Of course.

Janet Anderson [00:50:40] So thank you very much for your time.

Robert Petit [00:50:42] Thank you.

Stephanie van den Berg [00:50:42] Thank you very much.

Janet Anderson [00:50:46] 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 van den Berg [00:50:58] 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, AsymmetricalHaircuts.Com.
Janet Anderson [0:51:07] 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 van den Berg [00:51:19] This episode in the series of the prosecutor files has been produced with sound editing support from Open Society Foundations. Music is by Stay safe.
Janet Anderson [00:51:30] 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