Two Civil-Society Groups Call for Additional Vetting of Prosecutor Candidates

On July 16, a coalition of 10 civil-society groups released a joint statement concerning the process the Assembly of States Parties (ASP) created to shortlist candidates for the next ICC Prosecutor. The statement praised “the rigorous process undertaken by the Committee and Panel and the criteria considered to evaluate candidates,” applauded “the Committee’s initiative” in setting up an (admittedly incomplete) vetting process, and called upon states to “stand by the process they established to ensure the election of the most qualified individual” by not nominating candidates who were not shortlisted.

Fast-forward nearly eight weeks. On September 10, two of the 10 civil-society groups, the Open Society Justice Initiative and the Women’s Initiatives for Gender Justice, issued a new joint statement — this one calling for the ASP to subject Prosecutor candidates to additional vetting. Here are the relevant paragraphs:

With this letter, we urge the Bureau to robustly vet all candidates under consideration to become the next prosecutor of the International Criminal Court (“ICC”). Over the course of this year, our organizations have communicated with the Committee for the Election of the Prosecutor (“Committee”), the Bureau of the Assembly of States Parties (“Bureau”), and the President of the Assembly to advocate for a full vetting of candidates. While we welcome the important steps undertaken by the Committee in the course of its review, we believe it is essential that the Bureau go further to ensure that all candidates are equally and comprehensively vetted to confirm their fitness for this critical office.

[snip]

Notwithstanding the Committee’s achievements, then, we urge that the Bureau undertake a comprehensive vetting process for all candidates that could offer the necessary guarantees. This process should apply to all candidates considered for election. The following actions would ensure a more thorough review of candidates:

a) conducting reputational interviews, including collecting views from current and former colleagues, supervisors, subordinates and others who have interacted with the candidates in different capacities;

b) carrying out an independence check and a government exposure check;

c) investigating any identifying “red flags,” including any allegations of workplace misconduct; and

d) pursuing responses from all national criminal record offices, and any other information available from international organizations.

On Twitter, two OSJI lawyers insisted that there is nothing out of the ordinary about the new joint statement, because OSJI has always supported additional vetting and, in fact, issued a statement on July 1 — two weeks before the Joint Civil Society Statement — urging the ASP “to institute measures to enable those with sensitive information pertaining to candidates to come forward safely, so member states have the information they need” to ensure that the next Prosecutor is beyond reproach in terms of sexual harassment.

With respect to OSJI, this doesn’t add up. First, there is a timing issue. The OSJI had to have known long before September 10 whether the ASP was going to create the “sensitive information” procedure it had called for on July 1. So if the new statement is simply a sequel to OSJI’s July 1 statement, what explains the 10-week gap?

Second, there is a signatories issue. Why did 10 civil-society groups sign the July 16 statement but only two sign the September 10 statement? There is no question that a call for additional vetting by all 10 groups would have greater impact than a statement by only two. So if the September 10 statement simply follows on from the July 16 statement, it should have taken nothing more than a group email to get all 10 groups on board. After all, each of the 10 groups is deeply (and rightly) committed to ensuring that the next Prosecutor has the “high moral character” the Rome Statute requires.

Third, and finally, there is a substance issue. There is a notable difference between the 10-group July 16 statement and the two-group September 10 statement: unlike the September 10 statement, the July 16 statement did not call for additional vetting in the upcoming election (emphasis mine):

Significantly, the Committee took the unprecedented step of conducting a reference check and security screening for all of the longlisted candidates. While those steps fell short of a full vetting process, we applaud the Committee’s initiative and endorse its recommendation to include a vetting provision for all future elections.

OSJI’s call for additional vetting might not be unprecedented, given its July 1 statement. But that is not the case for the Women’s Initiatives for Gender Justice. For it, the September 10 call for additional vetting is new.

In short, it is difficult to believe that the September 10 statement is simply business as usual. On the contrary, it seems more reasonable to assume that something has happened concerning the upcoming Prosecutor election that convinced OSJI and Women’s Initiatives for Gender Justice of the need to ask for additional vetting.

Two scenarios suggest themselves. The first is that the groups have learned something about one of the shortlisted candidates that they believe should disqualify him or her. That scenario seems possible but unlikely: although the vetting process was obviously not perfect, any major red flag would likely have come to the Committee’s attention anyway.

The second possibility is that the two groups have reason to believe states intend to nominate new candidates for Prosecutor, whether from the long-list or outside of it. This seems much more likely to me, especially as two states — Kenya and Cote d’Ivoire — have already made clear they are not happy with the shortlisted candidates, reducing the likelihood of ASP reaching consensus and thus encouraging new nominations. Given that the deadline for nominating candidates is September 22, a bit more than a week away, the new statement is thus quite likely intended as the proverbial shot across the bow — an attempt to deter states from going outside the shortlist by making it clear that new candidates will be closely scrutinized.

To be clear, I have no insider information about any of this. I am simply making what I believe to be plausible inferences based on the curious nature of the September 10 statement. Stay tuned.