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

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

In the previous post I set out the basis for asserting that a comprehensive vetting procedure must be adopted for high level candidatures and how the failure to adopt comprehensive vetting measures impacted the climate and integrity of the Prosecutor’s election process.  In this post I examine the lessons that can be learnt from the ICC Prosecutor’s election by considering the utility of the limited vetting procedures that had been adopted and the fairness implications of those measures on the candidates.

There are many lessons that we can take from the Prosecutor’s election to improve the process going forward.  Notably, had early calls for a comprehensive vetting process been heeded from the outset, the whole process may have proceeded with more dignity than it otherwise did.  Indeed, the fact that the identity of impugned candidates was not disclosed opened the way for a cloud of suspicion to cover all those vying for office, but as we are told by one NGO:

“To those who bemoan unfounded rumors we say this: it is the lack of an avenue to channel allegations that help such rumors spread”.

Indeed, while the Committee for the election of the Prosecutor had very early on in the process signified its willingness to consider “credible complaints” and confirmed that all candidates had been subject to the vetting process, it nonetheless remained opaque as to how these complaints had been received and assessed.  Indeed, it is even unclear how accessible this avenue was at a time prior to interview of the candidates due to the confidentiality provisions applicable to the process.

The terms of reference of the Committee provided as follows:

“23. The vacancy announcement shall stipulate that any and all information received from individuals that have applied for the position, including their identities, will be treated confidentially by the Committee and the panel of experts. These confidentiality requirements will not apply to individuals who are shortlisted for consideration by States Parties.

24. The members of the Committee, the panel of experts and the Secretariat shall ensure the strict confidentiality of all communications and discussions during the process.”

In this regard, the original Committee Report noted generally that it had “received a number of unsolicited letters and messages in respect of putative candidates for the position of Prosecutor” and welcomed these “as expressions of interest by civil society in the process” but concluded that “the Committee’s mandate and the confidentiality of the candidacies at this stage precluded their acknowledgement” (para.12). In its second Report, extending the list of candidacies, with respect to one of the additional candidates, the Committee noted that it appeared that there had been a breach of the confidential nature of the interview process when the Committee received letters of support from NGOs in relation to that candidate (para. 18).   

First, we must ask ourselves how a process whereby candidacies are confidential allows for the Committee to receive complaints about candidates who are not meant to be known.  Second, whether intended or not, the tone of the Committee’s Report seemed to disapprove of having received petitions of presumable support for a candidate from the NGO community.  This tone of disapproval contrasts with its purported expressed willingness to receive detrimental reports or “credible complaints” and to assess those in the evaluation of the candidates (see here, para. 26). Indeed, the purported willingness to consider the bad and disapprove of receiving the good raises fundamental due process and fairness issues towards the candidates being considered (see here, para. 12). Surely any assessment of the moral integrity of a candidate involves a holistic consideration of purported observations on that candidates’ suitability.

Notably, while the Committee found “no conclusive adverse information” against any of the candidates (para. 26), upon its own admission it did not consider it was mandated to investigate any complaints that it may have received.  Indeed the Committee itself relied upon the confidentiality of its processes as a reason for not carrying out a thorough vetting process. Absent a facility to test and investigate the veracity of a complaint, there appears to have been no avenue actually available for the Committee to make any assessment of the conclusiveness or otherwise of any complaint that may have been received.

As serious concerns about candidates continued to be raised following the extension of the list of candidacies and deeper in the process, the response of the ASP was to have all remaining candidates sign declarations verifying that they had not been subject of an investigation or a finding of misconduct in the workplace. While a positive measure, notably, such a declaration does not verify the person has not been subject of misconduct that was not reported, and as already emphasized, much needs to be done to improve complaint procedures in international justice institutions. Most predators of international criminal justice act with impunity because they are not reported. Moreover, following the signing of the declaration by all the remaining candidates, the allegations did not abate, they just became more pointed and further undermined perceptions of the integrity of the process and of the candidates.

We must ask ourselves what motivated the reluctance on the part of the ASP Presidency and the ASP more broadly to adopt a more extensive vetting process now confidentiality issues were no longer a barrier and candidacies were well known. The steps towards carrying out a more through vetting process identified by NGOs were not overtly onerous, and while the ASP may have already tired of the process, with the outgoing Prosecutor leaving office in June 2021, there was still available time for some additional vetting measures to be implemented. Indeed, if high moral character is seen as a legal requirement or even as a characteristic to be highly valued, it is hard to understand why further more comprehensive action was not taken at the time the extended list of candidates had been presented to the ASP in November 2020.

This is even more puzzling in an environment where improving the culture of the ICC Office of the Prosecutor must be a high priority of any new Prosecutor taking office, given the findings of the Independent Expert Review, and also a high priority of the ASP.  The Court is, after all, its creation. In this respect,

“we should recognize that an international court will not be better than the integrity of its leaders” (see here).

While it is accepted that any process for election for high office is fraught with political pitfalls and potential diplomatic back-lash, particularly should any candidate be identified as lacking in moral integrity by an official Committee, the role of the Election Committee was to identify those candidates that met the requirements of the position, of which high moral integrity was an integral component (p. 12) – and the stakes could not have been higher. In this respect, they should have been given the mandate to actually do so.  That said, it should be noted that the terms of reference formulated by the Bureau of the Assembly of States Parties showed a traditional disregard for the importance of moral fitness for office and appeared to emphasise practical competencies. While the provision of Article 42 of the Statute was referred (para. 12), integrity and impeccable moral character did not warrant a specific mention in contrast to the specific emphasis placed on the Committee considering

“experience in the prosecution of complex criminal cases; demonstrated management experience; in-depth knowledge of national or international criminal law and public international law”.

While we should iprotest the fact that the vetting process adopted was inadequate, we must also bemoan the impact of that failure on the candidates. A proper vetting process would, as civil society advocated, have protected candidates from rumors and from complaints that were unfounded or maliciously motivated. Indeed, anyone who has spent their careers in the highly competitive sphere of international criminal justice would appreciate the likelihood of both unfounded and maliciously motivated attacks on a candidature. We have all witnessed back-biting and heard falsehoods intended to smear reputations with the aim of creating obstacles to career progression-often simply due to no more than deep-seated personal animosity based on professional jealousy.  Simply put, the realm of international criminal justice can be plain nasty. In that regard, I query whether noble NGO commitment to a vetting process became the high-jacked vehicle through which politically motivated smear campaigns were very unfortunately allowed to flourish.

At the end of the day, there were no winners in the way the election of the new Prosecutor was conducted. It was unfair to the court as an institution and it was unfair to the candidates.  With the wisdom of this experience, one can only hope that sufficient motivation will be spurred to ensure that next time the office of the Prosecutor becomes vacant, a process will be adopted that allows for a full, fair and transparent assessment of the moral integrity of the candidates and is sophisticated enough to weed the credible from the incredulous. In that respect, we should

“be wary of any attempt to instrumentalize what is a fundamentally important subject for the future of international criminal justice (for example pursuant to personal ambition linked to court elections or preservations of jobs). Anecdotes can obviously be valuable if they translate into proper evidence, whereas deliberate rumor mongering and prejudice must be handled with care when basic interests of international courts as well as individuals are at stake.” (see here, p.33).

The adoption of a proper and comprehensive vetting procedure is what is needed to ensure a fair process and to block any such attempts.