What Lessons Can We Learn from the Prosecutor’s Election? Part I

Gabrielle McIntyre, Chair Women’s Initiatives for Gender Justice; Chairperson, The Truth, Reconciliation and National Unity Commission, Seychelles.

In this two-part post, I will address the clear need for vetting of high candidacies to ensure they meet the requirements of high office- in particular, the legal requirement of high moral integrity so often assumed to be part and parcel of such a candidature.

In this first part, I will set out how growing awareness of issues of moral character of persons holding high office underpinned the call for the adoption of a comprehensive vetting procedure of candidatures for ICC Prosecutor and how the failure to adopt comprehensive vetting measures impacted the climate and integrity of the Prosecutor’s election process. The second part will examine lessons that can be learnt by considering the utility of the limited vetting procedures that were adopted by the Committee for the Election of the Prosecutor and the fairness implications of those measures on the candidates.

PART I

The lack of attention historically paid to the required qualification of high moral character contrasts starkly with the relative openness with which the practical professional competence of nominations for high office is lamented. Indeed, as most high level international positions require state nomination and state support, not to mention substantial national investment through lobbying and horse-trading with other States, the candidate being identified with the State (see here and here), it is difficult to consider that persons with less than high moral integrity would be put forward by States (even accepting that candidates without the other specific professional qualifications may be readily proposed). Yet many of us who have spent our careers in international criminal justice have long been aware that States do propose persons not only without the necessary practical skills but also without the necessary personal characteristics of high integrity and impeccable moral character. While we have known this for decades, we have nonetheless remained relatively powerless to protest it.  It is not that there have been no avenues at all through which to voice a complaint, but the territory is a particularly dangerous one, fraught with complications, and it bears consequences.  As the recent election of the ICC Prosecutor demonstrated, despite our growing awareness of the institutional impacts of paying less than full attention to such requirements, there is still a reluctance to do so in any meaningful and fair way.

1.  Breaking the Model of Silence

This model of silence about issues of integrity and moral character in international criminal justice institutions was recently penetrated by the Independent Expert Review of the International Criminal Court and the Rome Statute System issued by an international Group of Experts assigned to examine the International Criminal Court. The findings of the report of a toxic work environment, and high incidents of bullying and harassment, including sexual harassment (see here paras. 72, 138, 209, and 210-214), raised many eye-brows but not those familiar with the culture of the field. As a female with many direct experiences of untoward conduct by senior officials working in international criminal justice, and having supported many female victims who have suffered abuses in the work place, the identified issues seemed commonplace. Indeed, the Expert Report was itself quick to point out that these were issues prevalent in many work places (see para. 209) and the excellent IBA report “US Too? Bullying and Sexual Harassment in the Legal Profession” in particular confirmed the widespread nature of bullying and sexual harassment in the legal fraternity. The only surprising thing was that the Experts saw fit to raise these issues as problematic, rather than matters to be ignored and tolerated.  In that respect, I note that an earlier attempt to raise some of these matters prior to the “Me Too” moment in an independent expert report (paras. 49, 52-53, 63, 173, and 183), not commissioned by the Assembly of States Parties, then resounded on deaf ears.

The veil of silence around these issues was yet further penetrated through the Twitter campaign conducted by Women’s Initiatives for Gender Justice and Atlas, “Why I didn’t report”, which ran from 11 to 22 January 2021. During that campaign anonymous women from anonymous organizations engaged in the field of international criminal justice explained why they didn’t report allegations of misconduct against presumably more senior officials in the work place. These anonymous disclosures, which identified specific reasons for not reporting acts of misconduct, epitomized my personal experience of the veracity of why you really shouldn’t report.  Women I know who were daring enough to do so were, as the anonymous victims feared, alienated by their colleagues, especially female colleagues, labeled as “crazy”, and let down by other female colleagues who were in positions to corroborate parts of their allegations yet chose not to do so.  Indeed, in one instance, I even witnessed an investigation of an allegation of misconduct made by a female junior staff member against a senior official result in an investigation against the staff member for making a “malicious complaint”, the seniority of the official being the basis for a credibility finding in his favor.  Notably, it was a female senior official who pushed for that investigation to be redirected against the complainant. It was only a more senior male official that protested a perceived injustice, but to no avail, although such a re-direction clearly smacked of retaliation. I even made a complaint to a supervisor myself earlier in my career, and while told the situation was “terrible”, I was warned of the consequences of trying to take any formal action and counseled against doing so. Indeed, my witnessing of the results of investigations into a number of allegations of sexual harassment and misconduct led me too, later in my career with the benefit of wisdom, to counsel women victims against taking official action.  Nothing good ever came of it.  The allegations were rarely found proved, and the career progression of the reporting female always suffered.  In most cases she simply left the organization under the cloud of having made an allegation against a senior official that had not been found to be substantiated. A cloud that many would have been happy to see follow her thereafter.

• The Calls for a Vetting Procedure for Prosecutorial Candidates

While all of these issues seemed to come to the fore following the issuance of the International Expert Report, it was really the previous lobbying that had been done by the Open Society Justice Initiative and Women’s Initiatives for Gender Justice, amongst others, for the identification of the next Prosecutor of the International Criminal Court to be subject to a vetting process, that really drew attention to the importance of ensuring a qualification of high integrity and morality was more than just an empty phrase. Indeed, earlier attention had also been focused on these issues after allegations against former Prosecutor Ocampo came to the fore and adversely impacted perceptions of integrity of Bensouda’s Office (see here and here).

Against that experience, and as a result of persistent lobbying, the Committee on the Election of the Prosecutor requested approval from the President of the Assembly to amend the terms of reference to include a vetting procedure for assessing the “high moral character” of the candidates. The President of the Assembly welcomed that amendment (para. 21). Accordingly, the process for the identification of suitable candidates did, for the first time, include some form of vetting of the moral character of the candidates.  For example, the Committee on the Election of the Prosecutor “included a line of questions on the topic of work place or sexual harassment in the interviews, observing both the candidate’s substantive answers and demeanor in response (para. 26).” It also took the unprecedented step of subjecting the candidate to vetting procedures generally applicable to non-elected staff members, namely “detailed reference checks, checks of publicly sourced information (including candidates’ own social media accounts), and security and criminal record checks” (para.29). The Committee had also committed early in the process to receiving credible information about individual candidates and to considering that information in their evaluation of the candidates’ suitability.

Unfortunately, despite what were no doubt best efforts in compliance with the mandate they understood they had been given (para. 26), the work of the Committee did not create widespread satisfaction amongst international civil society with the vetting procedures that had been adopted; nor did it result in any broad endorsement of the candidates it identified as best placed for the job. The Committee selected short-list of four was later opened to all additional candidates originally short-listed for an interview. Of the ten remaining additional candidates, one had previously indicated they no longer wished to be considered and the remaining nine candidates were requested to indicate their “in-principle interest” to continue being considered. Two additional candidates indicated they no longer wished to be considered and the remaining seven candidates were provided with a copy of their appraisals by the Committee. Thereafter, two additional candidates advised that they no longer wished to be considered (para. 6) leaving a total of five additional candidates.

• Outcome of the Vetting Procedure

While the Committee for the Election of the Prosecutor had taken unprecedented steps to vet candidates, it was forthright in its assessment (para.31) that “a vetting process set in motion ex post facto and with limited scope, cannot lay claim to comprehensiveness” (para.31). Nonetheless, in its original report of short-listed candidates it stated that it was confident that

“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.”

In its second Report extending the list of candidacies, the Committee confirmed that all 14 candidates had been subject to the vetting process and reported that “while the Committee was made aware of certain allegations of misconduct, including in the public domain, the vetting process disclosed no conclusive adverse information in respect of any of the candidates” (para. 12).

Notably, in its second Report the Committee did not state the same expression of confidence in the vetting procedure as having assisted it in presenting additional candidates that would be able to “withstand […] reputational scrutiny” during the election process.  While it may be unfair to interpret this omission as reflective of concerns about the moral character of any of the additional candidates, as opposed to candidate preferences that had already been expressed, on its face, the implication is there.

• Anonymous Allegations Against Prosecutorial Candidates

Despite the Committee’s determination of “no conclusive adverse information” of all 14 candidates, with the extension of the list of potential candidates there came more calls for a “proper vetting process” to be adopted. Additionally, specific anonymous reports were made on Twitter of confidential complaints of misconduct having been received against three of the potential candidates. Upon clarification being sought, it was stated that there was no attempt to

“name and shame anyone or discredit any candidate” but “[t]he reality is that these complaints might be true and then we’re running the risk of electing a predator (sic) as the next ICC Prosecutor”.

On 14 December 2020, eighteen NGO’s sent an open letter to the ICC Assembly of States Parties making various recommendations with respect to ensuring a

“transparent and merit based election, including giving the new included candidates the same opportunities to be heard, and in relation to all candidates urged the Assembly ‘[…] to require and undertake comprehensive vetting of candidates to assess “high moral character,” which necessarily includes: 1) reputational interviews with individuals beyond the candidates’ reference materials; and 2) the solicitation, receipt and review of third-party information about the candidates.”

While the specific proposals made by Civil Society did not appear to involve an onerous procedure, time was running and the adoption of additional vetting procedures would no doubt have impacted the efficiency of the process.  As what appears to have been an alternative approach, all remaining nine candidates vying for the position of Prosecutor were required to sign a declaration, adopted by the Bureau in December 2020, self-verifying their high moral character and in particular that

“[t]here has never been an investigation or a finding against me of harassment, sexual harassment or gender-based violence, either work-related or otherwise.”

Despite this declaration, on 3 February 2011, Angela Mudukuti expressed her continued concerns about the lack of a comprehensive vetting procedure and posited that “[t]he statements of surprise from some quarters about the existence of active complaints against several of the candidates are simply not credible”. On 5 February, two anonymous complainants who identified their abusers as a person being considered for the position of ICC Prosecutor, purportedly came forward and their stories were widely circulated on Twitter. The following day, on 6 February 2021, a clarification was issued to these tweets stating that they had been posted in the belief that there was still hope of a vetting process and “to dispel the myth that there are just rumors” but not implying in any way which candidate they were about. Notably, one of the two complainants had previously come forward in early 2020 thus indicating that her allegation could be directed at any of the candidates. By 8 February 2021, following the failure of States Parties to endorse a candidate by consensus and at the close of the nomination process, just four candidates remained, each nominated by their States of nationality to stand for election. 

On 10 February 2021, the Open Society Justice Initiative issued a press release bemoaning the failure of the ASP Presidency and the ASP more broadly to establish a genuine vetting process for candidates, stating that

“[t]his is even more concerning given serious allegations that have emerged about the candidates that bear on their fitness for office, only days before the election now scheduled for February 12”.

On 11 February, Professor Jennifer Trahan referred to “rumors flying around” and claimed that “serious allegations have come to the ASP President and they have not even been shared with ICC member states.”

This was the unfortunate climate in which the election of the ICC Prosecutor took place. Ultimately, United Kingdom nominee Karim Khan QC was elected on 12 February 2021 with a resounding 72 of 123 potential votes. For all the candidates that vied for the position the process was grueling, subject to high public scrutiny and no doubt, as all electoral processes, fraught with political game-playing (see here and here).

Please find Part II here.