Workplace Misconduct at the ICC – A Call to Action for Compassionate Leadership (Part I)

[Danya Chaikel is a Canadian lawyer who specialises in international criminal law, currently consulting with the Women’s Initiatives for Gender Justice (WIGJ) on their Call it what it is campaign, an #ATLASToo admin, and an officer on the IBA’s War Crimes Committee. Thanks to Alix Vuillemin and Valeria Babără who helped with this post]

The next ICC Prosecutor has been chosen, following a prolonged election fraught with procedural controversies which ultimately overshadowed serious allegations of professional misconduct against candidates. Over a year of persistent civil society advocacy asking States Parties to thoroughly vet candidates to ensure they had clean professional records has yielded little results for now, but it has laid the groundwork for proper vetting in the future. The Independent Expert Review Final Report (IER Report), commissioned by the Assembly of States Parties (ASP) also bolstered civil society’s call to address workplace misconduct issues. The Experts describe a Court with a “culture of fear” including “predatory behaviour”, and that any real improvements must come from the top – from the ICC and ASP leadership. With this year’s significant turnover of ICC leadership and the IER Report’s detailed analysis and recommendations, a new era of courageous and empathetic management can be upon us. By challenging systemic indifference and boldly addressing the lack of effective mechanisms within the ICC and ASP, officials can become equipped to assess the high moral character of candidates running for top positions, as well as provide a safer workplace at the ICC for all. Key to this advancement will be compassionate leadership.

‘High Moral Character’ — The #Metoo Rallying Cry for the ICC Prosecutor Election

When I wrote about #MeToo and the ICC Prosecutor election last April and a harassment complaint I received, I would never have imagined that complaints would continue to come in. This year began with yet another lawyer reaching out. She explained that years ago, she lodged a harassment complaint against one of the final nine ICC Prosecutor candidates from the extended shortlist with her former employer, and that the candidate received a warning. This also calls into question the fact that all nine candidates indicated that they were not aware of any formal allegations of professional misconduct against them in the CICC ‘Prosecutorial Candidates Questionnaires’.

Like others, she didn’t know who else to turn to with her complaint. And like with the others, there was no way I could assist her, beyond listening to her story and communicating to States that we are still receiving complaints.

I asked her about how she felt about the lack of a reporting process during the Prosecutor election:

Discovering that this person was being considered for the position of ICC Prosecutor was re-traumatizing. Coming forward to make the complaint against him was such a difficult experience. After making the complaint, I faced retaliation from the individual and I eventually left my job as a result. When the entire experience was over, I felt that the stress and emotional toll I experienced had been worthwhile because I had done the right thing and exposed wrong-doing. Seeing that person now up for the position of Prosecutor is deeply distressing. How many times should I, as a victim of harassment, have to speak up to prevent this person from abusing his position of authority? That this person is even being considered for the position of ICC Prosecutor undermines the credibility of the institution.

Another woman who contacted me over a year ago about reporting her claim of misconduct against a candidate from the longlist, shared her feelings about her claim of sexual harassment and assault:

I still have flashes of that evening that pop up into my mind from time to time, and I feel disgusted and dirty when that happens. That especially happens if someone grabs me a bit too strongly or approaches me too closely. Also, as he’s high profile, unfortunately I still come across his name or even his voice in newspapers, podcasts etc., which triggers flashes of that night. It also still impacts me in the way I interact with older men in positions of power, as I’m much more on guard and always thinking that this could happen again. What also continues to affect me a lot, is that my job is to denounce abuses, and when I was a victim of one myself, I remained in silence because I was too ashamed and because reporting it seemed insurmountable for so many reasons. In particular, as it was not a rape, I felt that I would not be taken seriously. But even if I wanted to denounce it judicially, in terms of jurisdiction it seemed so complicated because of our residences in and nationalities from different countries. It took me two months to first mention it to someone, and more than a year to tell my husband. The shame, the fear and guilt and my lack of action as a result of that, still makes me cry, even after almost three years. It’s like he took a part of me, or at least who I thought I was, with him that night.

She also shared her thoughts on the lack of a reporting mechanism:

Even when I found out that he was a candidate for the position of ICC Prosecutor and I knew I had to do something about it, I was not able to fully complete the process because in the end I was too afraid and ashamed to speak up publicly and because the conditions to report the mistreatment were not safe enough. This felt like a second failure, because I finally had the courage to speak up, but I was very promptly reminded of all the consequences this could have on me. Even worse, the reported negligent and dismissive attitude of the diplomatic community in The Hague, made me realise that I would not be taken seriously, that it was not safe for me to report the incident and that the culture of “boys will be boys” still remains. But how could someone who prosecutes the worst crimes, including sexual violence, also be a sexual predator? This is a bleak sign for all women who have suffered from sexual abuse at work or in professional settings, even often in worse ways than me. Unless something is really done to change the reporting mechanisms, and not only during election periods, strong women will continue to hide their stories and sexual predators will continue to abuse their power and make more victims.

Publishing these quotes is meant to give the brave women who came forward an opportunity to speak, to dispel the myth that their claims are just rumours, and to call yet again for the ASP to establish a permanent vetting mechanismfor future elections. The timing of publishing this post, however, does not imply in any way which candidates the complaints are about.

Their disturbing accounts illustrate the types of repercussions complainants face. Without a safe mechanism in place, the individuals who came forward to share their distressing experiences couldn’t formally report their claims. This debacle was also unfair to candidates since they weren’t able to properly defend accusations made during the election process. While civil society advocated ad nauseum for the proper vetting of candidates including a safe venue to submit information, the courage of the people who came forward was met with unwillingness by States to come to grips with these accusations. I forget how many times I asked myself, ‘where is the compassion?’

Vetting of Candidates — A Controversial First

According to a summary of the recent consultations to find consensus on the next ICC Prosecutor, certain factors including “merits and high moral character – were frequently mentioned” by States Parties. I believe this strong emphasis on integrity is a first. According to the Committee on the Election of the Prosecutor, the article 42(3) Rome Statute requirement together with language in the Prosecutor vacancy announcement, imply “that the person should not have engaged in harassment, whether sexual or not, bullying, discriminatory behavior or other forms of abuse of power or malfeasance” (para 24). This increased awareness and attention signify progress, and at minimum this ‘catch phrase’ of the Prosecutor election has brought issues of workplace misconduct including sexual harassment into more people’s consciousness and the broader ICL discourse. But the trouble is that beyond these verbal nods, little tangible effort was made to properly assess the integrity of candidates during this election, apartfrom extra criminal record checks and open source research (para 29), which do not probe very deeply into past workplace behaviour. The final nine candidates were also asked to sign declarations, including that there are no investigations or findings against them of harassment, sexual harassment or gender-based violence, either work-related or otherwise. Apparently there has been confusion among States, so to be clear, this still isn’t proper vetting.

States cannot say they were ill-informed or unaware. A large number of civil society organisations tried (here, here, here, here, here, etc.) and failed to convince the ICC’s governing body to introduce a fair, transparent, and safe mechanism for individuals to submit information about the Prosecutor candidates. In particular, OSJI, WIGJ and the ATLAS network worked tirelessly on this issue to no avail. And now the ICC Staff Union Council has written a letter to States Parties, reiterating that “bullying and harassment are commonplace at the ICC” and “vetting is essential to ensure that all candidates meet the Rome Statute’s high moral character requirement”. They also point out that “the lack of an impartial process properly equipped to protect the rights of the complainants and candidates alike stimulates the spread of rumours and damages the credibility of the election process as a whole.”

What is proper vetting? In this letter sent to the ASP Bureau last September, OSJI and WIGJ explained what a thorough vetting process would involve, and that it is commonplace in many domestic jurisdictions. This includes, for instance, conducting reputational interviews, collecting views from current and former colleagues, supervisors, subordinates, and others who have interacted with the candidates in different capacities and investigating, as well as identifying ‘red flags’, including any allegations of workplace misconduct.

The two NGOs also co-organised an ASP side-event on addressing sexual harassment in international organisations. Austria and the Netherlands co-hosted this novel session, which included a valuable presentation from the Mintz Group, a company that conducts in-depth vetting and background checks. Mintz Group representative Kelsey Froehlich explained how they are able to uncover misconduct allegations through a comprehensive vetting process of candidates being considered for leadership positions. She said that such a process should be transparent and that employers need to be prepared to disclose such information to a candidate.

For over a year, even though the ASP Presidency and States Parties have been informed in no uncertain terms in multiple letters and meetings with various NGOs, they paid little attention to the issue. Even worse are the reactions of some States. Some minimised the veracity of the claims, right up until last week saying these were just rumours and ’a situation of he said she said’ with no proof of wrongdoing. Ironically this argument only serves to validate the need for vetting which would distinguish the rumours from legitimate complaints. Others said that there’s more at stake in the Prosecutor election, like finding a candidate who can stand up to the US, or that other positive skills outweigh any rumours about harassment. Worst of all have been jokes made about the sexual harassment claims, and how nowadays it’s like a crime to flirt with young women – the classic dinosaur #MeToo backlash approach. With so much at stake, the way States chose not to properly address the allegations of misconduct against Prosecutor candidates is simply unconscionable.

#WhyIDidntReport Campaign 

Civil society’s dismay grew as the lack of compassion of many diplomats and officials contrasted deeply with the heartfelt stories from legal professionals about misconduct that they had experienced at various international justice institutions. It is no wonder that so many people who were mistreated felt invisible and that their experiences were unimportant. It became clear that one of the reasons this issue hasn’t been sufficiently prioritised at a policy level is chronic underreporting, at all institutions including the ICC. So ATLAS and WIGJ launched the #WhyIDidntReport Twitter campaign to highlight the scale of workplace misconduct, and the roadblocks to reporting mistreatment – including sexual harassment, bullying, abuse of authority, corruption, racism, ableism, homophobia, sexual assault, and other forms of violence. Many forms of misconduct occur in the shadows, creating a sense of secrecy, shame, and invisibility. By asking a network of 8,000 women working in public international law why they didn’t report workplace misconduct at international justice institutions, we uncovered the raw and sometimes disturbing reasons for underreporting.

We know from the 2017 ICC Staff Union survey of 128 staff members regarding harassment, bullying, abuse of power, and discrimination, that only 18.7% of those who said they were victims of these behaviours reported the misconduct, and some of the reasons for not reporting included: lack of faith that measures would be taken, fear of retaliation, lack of support from peers or supervisors, and because of the lengthy process. The International Bar Association’s ground-breaking report, ‘#UsToo? Bullying and Sexual Harassment in the Legal Profession‘, identifies chronic underreporting of incidents, with 57% of bullying cases and 75% of sexual harassment cases not reported, for reasons including the profile of the perpetrator and the target’s fear of repercussions. Even when targets report such incidents, workplaces are failing them – official responses are considered insufficient or negligible, perpetrators are rarely sanctioned and, in many cases, the situation is exacerbated.

With so few people reporting, it’s almost impossible to understand the extent of the problem, and equally difficult to address it or hold offenders accountable. Plus, the best strategies, policies, and training are meaningless if staff don’t trust the system. In his preliminary remarks about the IER, ICC President Chile Eboe-Osuji stated that, “underreporting is always a problem – even in the most egalitarian national cultures, let alone in the more hierarchical or patriarchal ones, where even persons (men and women) in very senior positions will do their best to avoid confrontation with those perceived to have superior powers, priding ‘likeability’ above all” (para 22).

The #WhyIDidntReport campaign was eye-opening. From 11 to 22 January 2021, we tweeted 24 testimonials of women working in public international law. They shared their heartfelt and distressing reasons for not reporting workplace misconduct at international justice institutions, including retaliation, fear, stigma, gender and race bias, and opaque or missing reporting mechanisms. The specific fears included: the perpetrators, especially of those who held senior roles; losing their jobs; not getting promoted; being punished; being ostracised; and the emotional and psychological ordeal of recounting events. It is important to recognise that these fears, including of potential retaliation are not imagined or exaggerated. For example, according to a recent report by the National Women’s Law Center (NWLC), based on TIME’S UP Legal Defense Fund’s US data, 72% of survivors who experienced workplace sexual harassment faced some form of retaliation, including termination, being sued for defamation and denial of promotions.

Please continue to read the second part of the post