Did the CEP Exclude Prosecutor Candidates Because of Moral Character Issues?

According to Stephanie Maupas, in late July the chair of the Committee on the Election of the Prosecutor (CEP), Sabine Nölke, said the following concerning the Committee’s vetting of candidates long-listed for Prosecutor:

“I made the statement very clearly to the States Parties, the vetting process did not disclose any disqualifying information,” she said. The Canadian diplomat also asserted, not without ambiguity, that “those who were removed were not removed without good reason” and that “we received unsolicited messages from a number of quarters, from NGOs, from Bar Associations, even from States Parties, and we disregarded them”.

I have heard from three different sources in recent days that, in fact, at least two of the long-listed candidates were not short-listed in part because of concerns about their moral character — specifically, that they engaged in sexual misconduct. The sources did not tell me the names of the affected candidates, which makes it impossible to follow up on the information. It may well be that the sources are mistaken.

If they are not, though, the exclusion of candidates from consideration because of moral-character concerns raises signifiant questions about the integrity of the CEP process. As the Committee’s final report notes, because of their Terms of Reference (ToR), they were able to conduct only a very limited vetting of candidates’ moral character. Here are the relevant paragraphs:

26. The Committee determined that while its mandate required it to apply due diligence with regard to the requirements of article 42(3) and that this was central to its task, it lacked the legal authority or framework, as well as the mandate and the capacity, to carry out inquiries, complaint procedures or investigations in respect of candidates who as yet had no legal relationship with the Court, and whose identity it was bound by its Terms of Reference to keep confidential. Accordingly, the Committee included a line of questions on the topic of workplace or sexual harassment in the interviews, observing both the candidates’ substantive answers and demeanour in response.

29. The vetting process consisted inter alia of detailed reference checks, checks of publicly sourced information (including candidates’ own social media accounts), and security and criminal record checks. The Committee agreed with the Security and Safety Section of the Court that certain specific details of the process should remain confidential so as to protect future such processes against potential manipulation or evasion.

31. The Committee is aware that a vetting process set in motion ex post facto and with limited scope, cannot lay claim to comprehensiveness, nor will it offer all desirable guarantees. In particular, it is to be noted here that references offered by a candidate will likely be inclined to respond only with favourable assessments, and that not all national criminal records bureaus contacted by the vetting officers responded to inquiries. That said, the vetting process contributed to the Committee’s ability to present to the Assembly a strong and credible list of the most highly qualified candidates, whose candidacy are likely to withstand the reputational scrutiny that the subsequent public process will bring with it.

It is difficult to see where character allegations serious enough to help justify a candidate’s exclusion would come from. It is unlikely a candidate would seek election if he or she knew a security or criminal-record check would disclose something disqualifying. The same goes for publicly-sourced information such as Twitter and Facebook. And it is even more doubtful that referees chosen by the candidate himself or herself would mention moral concerns (particularly involving sexual harassment) in their reference letters.

If the CEP did receive information calling into question a candidate’s moral character, then, it almost certainly came through back channels — civil-society communications, statements by diplomats and other government officials, and the like. Yet as the ToR make clear, and as Nölke reaffirmed to states, the CEP had no authority to take such information into account — no matter how credible. The process cannot be deemed legitimate, therefore, if the Committee nevertheless did so.

This is not a minor issue, nor one that can be swept under the rug. The CEP needs to either (1) publicly reaffirm that no long-listed candidate was excluded from consideration, even in part, because of moral concerns, or (2) explain how the Committee obtained the information that contributed to a candidate’s exclusion and why they were entitled to consider it. Moreover, if the CEP did take into account information about moral character, they need to state publicly whether the affected candidate was given an opportunity to respond to the information.

The CEP would need to address the process issue even if states were inclined to elect by consensus one of the shortlisted candidates, because it’s possible that a candidate who would otherwise have been shortlisted might have been excluded solely because of moral-character concerns. As Mark Kersten and I have each reported on Twitter, however, the Bureau of the Assembly of States Parties (ASP) does not believe that consensus is possible on any of the four shortlisted candidates and is currently drawing up plans to widen the pool of Prosecutor candidates. We don’t know exactly who will be included in a wider pool, but it is highly likely that the pool will include all of the long-listed candidates who still want to be considered. If one of those candidates was excluded from consideration by the CEP even in part because of moral-character issues, he or she needs to know before deciding whether to go forward. And if there are concerns about the moral character of a long-listed candidate who nevertheless stands for election — particularly insofar as the concerns involve sexual harassment — states and the public need to be informed of that fact.

But even that is not enough. From the beginning of the electoral process, civil society has been calling for robust vetting of every Prosecutor candidate. At the end of April, for example, ATLAS published an open letter to the CEP in which they demanded — rightly — “a fair, transparent and safe procedure for receiving and assessing complaints of misconduct against the candidates for ICC Prosecutor”:

We recognise the constraints of the Committee and applaud its concerted attention to these issues. Nonetheless, this is insufficient given there is currently a complaint of sexual misconduct against a likely candidate for ICC Prosecutor, and no fair, safe process to which the complainant can be referred. Allegations of professional misconduct are – as the 2017 ICC staff survey indicates – routinely rendered invisible because complainants perceive, not unreasonably, the personal and professional costs of reporting to be too high. It is important that there is a comprehensive system for receiving and examining complaints. This should include effective procedural protections for both the complainants and those facing allegations.

We reiterate our call on the Committee on the Election of the Prosecutor and ICC States Parties to continue with the necessary consultations with the ICC, civil society and relevant experts on the logistics and next steps in introducing a fair, transparent and safe procedure for receiving and assessing the current complaint and any other complaints of misconduct against the final candidates.

Similarly, and more recently, the Open Society Justice Initiative (OSJI) and the Women’s Initiatives for Gender Justice (WIGJ) issued a joint statement calling for the ASP to subject Prosecutor candidates to more thorough vetting than permitted by the CEP’s Terms of Reference.

The coming expansion of the list of Prosecutor candidates presents the ASP with a golden opportunity to get the vetting process right. Requiring each and every candidate for Prosecutor, including the shortlisted ones, to consent to the kind of searching moral-character review demanded by ATLAS, OSJI, and WIGJ is absolutely critical to legitimacy of the election. Such additional vetting would present no process concerns, because any candidate who does not want to be vetted can simply decline to be considered further.

An adequate vetting process, however, has to begin with the CEP clarifying whether any long-listed candidate was excluded from consideration, even in part, because of information that called into question their moral character. The Court, states, the public, and the candidates themselves deserve no less.