The Rome Statute of the International Criminal Court (ICC) requires that the judges, prosecutor and deputy prosecutors, and the registrar of the Court “shall be chosen from among persons of high moral character,” in addition to the qualifications and experience necessary for each role. However, over the past two years, it has become clear that the systems currently in place to assess this requirement are grossly inadequate.
A notable gap in the 2020-2021 election of the prosecutor was the absence of a comprehensive approach to vetting for high moral character. Despite repeated calls from civil society throughout the election process, candidates’ vetting for high moral character was limited to questions during interviews by the Committee for the Election of the Prosecutor (CEP), charged with short-listing candidates, a written declaration signed by candidates and a basic background check carried out by the Court’s security section. As a result, without a formal process to receive and assess complaints of misconduct, serious allegations about candidates, including about sexual harassment, were only received by civil society organizations and women’s networks, and rumors circulated on social and mainstream media.
Since then, states parties have taken several steps to strengthen the ICC election processes and, in particular, to fill the “vetting gap.” With the process for the election of the Court’s next registrar underway, this is an opportune moment to take stock of some of these efforts and to start looking ahead at what should be done to ensure the best possible vetting of candidates for elected positions at the ICC .
What Has Been Done So Far?
In light of the controversies that arose during the election of the prosecutor, the court’s Assembly of States Parties (ASP) initiated a lessons-learned exercise with a view to strengthening such processes. As part of this exercise, the Bureau of the Assembly, an elected body comprised of the Assembly’s president, two vice-presidents and 18 other members representing states parties, asked the CEP and a panel of five independent experts who assisted them to report on the implementation of their mandate.
Both the CEP and the panel of experts recognized the shortcomings of the limited vetting conducted in the context of the prosecutor’s election. The CEP said that “[f]uture selection processes – for all elected officers, not just the [p]rosecutor – should include a clear process for determining the ‘high moral character’ qualification of candidates. “
The panel of experts recommended the development of a dedicated mechanism for receiving and assessing complaints regarding candidates in future elections of the prosecutor and deputy prosecutors. They further highlighted the need for such a mechanism to ensure anonymity of complainants and include adequate whistle-blower protections, stressing that “considering, the relatively small world of international criminal justice is a barrier for individuals reporting harassment, the confidentiality of potential victims must be an essential pillar in any process developed. ” The former ASP presidency, which led the process for the election of the prosecutor in 2020-2021, also provided some observations on vetting.
In the first half of 2022, Serbia and Austria, the two facilitators mandated by the Assembly’s Bureau to conduct this lessons learned exercise, consulted states parties and civil society and are due to publish their report later this year. To provide a solid basis to strengthen future election processes, such a report should include strong recommendations on vetting and how to institutionalize it.
While reflecting on the shortcomings of past election processes, states parties have also established two ad hocprocedures to assess the high moral character of candidates in the context of the election of the two deputy prosecutors, which took place in December 2022, and the election of the court’s Registrar, expected for early next year.
Due Diligence Process for the Deputy Prosecutors Elections
In October 2021, the ASP president and the ICC prosecutor agreed on a due diligence process for the election of the two deputy prosecutors. The process consisted of a candidate questionnaire, background checks overseen by the prosecutor, and use of the court’s Independent Oversight Mechanism (IOM) to assess any allegations of misconduct against shortlisted candidates submitted through a confidential channel. While a step forward, this due diligence mechanism was established quickly and without civil society consultation. In addition, information on the confidential channel was only available for 14 days on the ASP webpage dedicated to the election of deputy prosecutors.
Due Diligence Process for the Registrar Election
In June, the Bureau adopted another ad hoc due diligence process, this time for the election of the registrar. This process, based on a proposal by the IOM and the ASP presidency, is the product of more inclusive discussions with states parties and civil society.
While the current process could have been further strengthened (eg, with the inclusion of mandatory reputational interviews with direct supervisors and supervisees for each candidate and the reinforcement of the provision allowing the submission of anonymous complaints of misconduct), it contains some important elements:
- Clarity on what constitutes misconduct: “human rights violations, incidents of harassment, including sexual harassment, abuse of authority, discrimination and bullying in the workplace, as well as other ethical or legal breaches of a serious nature such as fraud or corruption;”
- Express provision for background checks to be carried out by the IOM with the assistance of the relevant sections of the court’s Registry; and
- Efforts toward better dissemination of information regarding the availability of a confidential channel for the receipt of allegations of misconduct.
On 17 June, the ICC president submitted the short list of candidates to the Assembly, and the IOM is expected to begin background checks and to establish the confidential channel for the submission of complaints soon. Once the confidential channel is in place, it will be essential that all stakeholders publicize this information as widely as possible within their respective networks. Within days of the short list being announced, a member organization of the Coalition for the International Criminal Court received an inquiry about how to submit allegations of misconduct.
What Should Happen Next?
In addition to ensuring the effective implementation of the current due diligence process for the registrar’s election, states parties should begin to design a scalable and permanent vetting mechanism for all ICC and ASP elections, to ensure a comprehensive assessment of high moral character. A permanent process – rather than the continued development of ad hoc procedures – will offer certainty for candidates and states parties, increase transparency and confidence in ICC elections, and allow for a transfer of institutional knowledge on best practices of vetting procedures. In addition, it will be more efficient to invest resources in the one-time process of establishing a permanent mechanism rather than to routinely create new procedures for each election.
The omnibus resolution adopted in December mandated the ASP Bureau to continue consultations for developing a vetting process for all ICC officials, and to report to the ASP ahead of its twenty-first session in December 2022, with a view to adoption as soon as feasible and no later than its twenty-second session in 2023. With the next judicial elections in 2023 fast approaching, the development of such a permanent process takes on added urgency. States parties, and the Bureau in particular, should begin discussions now to ensure the swift establishment of this much-needed mechanism. These should include consultations with various stakeholders, including civil society, as well as with vetting experts.
Civil society groups have been advocating the establishment of a fair and transparent permanent vetting mechanism for ICC and ASP elections for over two years, and the Elections team of the Coalition for the ICC has already provided initial recommendations on what it could look like, including:
- A permanent process should explicitly include reputational interviews, which could help reveal relevant information about a candidate’s character or conduct that would not otherwise be uncovered;
- It should also take into account the significant burden on potential complainants who wish to raise allegations of misconduct by providing adequate time to submit relevant information and documentation related to the allegation, and ensuring the best efforts to protect the anonymity of the complainant while disclosing the nature of the allegations; and
- Finally, it could account for different vetting approaches that may be appropriate for different elections. For example, it could distinguish between the election of ICC officials (prosecutor and deputy prosecutors, judges, and registrar), and those of the ASP (eg, members of the Committee for Budget and Finance, and the Board of Directors of the Trust Fund for Victims).
Unfortunately, the systems in place for the vetting of elected officials in international organizations leave much to be desired, particularly when compared with similar processes in domestic legal systems. The ICC should set the highest possible standards and states parties have an opportunity to ensure that it becomes a global model for vetting candidates for elected positions.
Danya Chaikel is an international lawyer consulting with the International Federation for Human Rights (FIDH).
Maria Elena Vignoli is senior international justice counsel at Human Rights Watch.