THREE SENIOR lawyers – a Finn, a Canadian and an Australian – have been shortlisted for the job of deputy chief prosecutor at the International Criminal Court (ICC) to replace Fatou Bensouda, who was promoted to chief prosecutor in June, as controversy grows over whether or not the ICC should intervene in Syria.
Ms Bensouda, a former Gambian attorney general who served as deputy to the controversial Luis Moreno-Ocampo, has submitted the names for a final decision to a meeting of the Assembly of States Parties – the 123 countries that are signatories to the Rome statute that established the ICC – in The Hague in mid-November.
The nominees are Raija Toiviainen from Finland, Paul Rutledge from Australia and James K Stewart from Canada, all of whom have significant administrative and prosecutorial experience.
Ms Bensouda, whose appointment was strongly backed by the African Union, described the candidates as “of very high quality”. There is no indication as to who may be the frontrunner.
James K Stewart served two stints at the International Criminal Tribunal for the Former Yugoslavia, first as chief of the prosecutions divisions and later as chief of prosecutions. He also served as senior appeals counsel and then chief of the appeals and the Legal Advisory Division at the International Criminal Tribunal for Rwanda.
Raija Toiviainen is a former state prosecutor and, since 1997, head of the international unit for Finland’s prosecutor general. In 2009, she led the country’s first universal-jurisdiction prosecution for genocide, in which a Rwandan who had sought asylum in Finland was sentenced to life in prison.
Paul Rutledge has worked as an adviser on management issues to the public prosecutor of Papua New Guinea and the Solomon Islands director of public prosecutions.
Behind the scenes there are suggestions the court may return to a system of two deputy prosecutors, known as deputy prosecutor (investigations) and deputy prosecutor (prosecutions).
Ms Bensouda for three years was one of two deputies before Serge Brammertz left to become chief prosecutor at the former Yugoslavia tribunal nearby. It is a system that is regarded as having divided a heavy workload efficiently.
Whoever takes the deputy prosecutor’s job next month, it is likely the debate over Syria – and whether ICC intervention could accelerate a political transition from the Assad regime without military intervention – will still be raging.
The most common objection is that referral of Syria to the court would be impossible without the agreement of the UN Security Council. Syria is not a state party to the ICC and the court has no jurisdiction without such a referral.
Russian and Chinese support for Damascus means a move by the Security Council is impossible.
Some, such as former French foreign minister Bernard Kouchner, argue that the UN secretary-general can recommend an investigation by the ICC chief prosecutor.
That is factually correct, according to Balkees Jarrah, counsel for the international justice programme at Human Rights Watch. However, the problem remains that the chief prosecutor herself cannot then bring the court’s jurisdiction into play.
Ms Jarrah says the UN High Commissioner for Human Rights, Navi Pillay, recently recommended the Security Council refer Syria to the ICC and a number of countries supported that recommendation – but the practical effect remained stalemate.
“When it comes to a referral, either the Security Council or Syria itself must do this,” she says. “However, victims can and should certainly bring forward information regarding crimes to the court.”
Those victims may have been given new optimism last Friday when Carla del Ponte, another prosecutor familiar with the corridors of power in The Hague, was appointed to a UN commission set up to investigate possible war crimes in Syria. Ms del Ponte has a formidable reputation not just as a skilled investigator but also as a tough-talking legal professional unwilling to be used as political window-dressing.
