One issue that the Committee on the Election of the International Criminal Court (ICC) Prosecutor and its independent panel of experts may have to grapple with when evaluating candidates is an assessment of their “high moral character.” As part of the Open Society Justice Initiative’s advocacy on the election of the next prosecutor, we have emphasized that in order to meet that test, candidates should have no history of harassment or misconduct in the workplace. Indeed, this is in part because the ICC is not immune from scandal and gaps in protection have been identified.
From Hollywood, to Oxfam, to the United Nations, institutions and industries engulfed by sexual harassment and bullying scandals have instituted wide-ranging reforms to uphold their reputations. This has included announcements of new hiring measures and zero tolerance policies, internal audits and structural changes, mass resignations, and the formation of new advocacy-oriented groups. In the United States alone, the #MeToo movement has not only impacted social norms and conversations, but has also led to stronger laws to address workplace harassment and prohibit the use of nondisclosure agreements in sexual harassment cases, among other things.
Although zero-tolerance policies and codes of conduct are widely publicized and training is often made available, institutions are still failing to deal with problems in their own ranks. As the International Bar Association’s recent global survey of nearly 7,000 legal professionals uncovered, bullying and sexual harassment are widespread in the legal profession, and even when policies and training are in place, they do not make a difference. If the most effective weapon against sexual harassment is prevention, hiring the right managers who will enforce zero-tolerance policies is crucial.
However, we have found that there is little publicly available information on internal processes and safeguards in hiring practices. Some companies have implemented processes to assess moral character in the hiring process, from social testing processes (Zappos) and data-driven recruiting and algorithms (Google), to electronic tools that filter out former personnel who were implicated in substantiated cases of sexual harassment, abuse, or exploitation (the UN’s “Clear Check” screening database).
To learn more about how to vet candidates’ ethical outlook and behavior, we reached out to experts for guidance. We spoke to Sareta Ashraph, co-founder of ATLAS and a barrister specializing in international criminal, humanitarian, and human rights law; Purna Sen, executive coordinator and spokesperson on addressing sexual harassment and other forms of discrimination at UN Women; and Danya Chaikel, a lawyer based in The Hague who has worked across four different international criminal law institutions over the past ten years.
“High Moral Character”
Article 42(3) of the Rome Statute lists “high moral character” as a key requirement for the position of ICC prosecutor, along with competence and extensive practical experience in the investigation, prosecution, or trial of criminal cases. The requirement was also reiterated in the vacancy announcement for the post. Although the term “morality” can be subjective, as the experts pointed out to us, in this context it does allow for consideration of a person’s past ethical behavior.
So what are the best practices in assessing “high moral character” in the hiring process?
The experts we spoke with proposed several good practices that could be taken up by the Committee on the Election of the Prosecutor. They pointed to the need for an agreed upon, comprehensive, and meaningful definition of “high moral character.” In their view, the committee should conduct competency-based interviews with direct questions that leave little room for misunderstanding or manipulation, and consider seeking confidential comments from some of the candidates’ current and former staff.
The experts suggested that vetting could include putting ethically ambiguous questions to candidates as a way of exploring their thought processes and ways of managing ethical dilemmas. This could include asking candidates hypothetical questions about what they would do in practice to preempt and avoid issues of harassment and discrimination. Questions such as, “We know sexual harassment has been a tolerated, under-recognized, and under-reported behavior in the workplace. Can you discuss your own conduct or conduct of a colleague that has been questionable? What was done about the alleged misconduct? How would you address those issues as the ICC prosecutor?” could probe a candidate’s understanding of the basics of the issue.
One of the experts highlighted that rigorous assessment of ethical character should start from the beginning of a vetting process, through setting up procedures, some of which are described in the next section, that test a person’s ethical outlook and decisions throughout their career. It was noted that one big consideration cutting across all these questions is whether the members of the selection committee themselves come from diverse backgrounds, bring with them a variety of viewpoints and perspectives, and are overtly outspoken on these issues.
Unconfirmed Allegations and Due Process
An unavoidable question is how much weight should be given to unconfirmed allegations of harassment, discrimination, or sexual misconduct, to ensure respect for due process.
Many instances of sexual harassment and discrimination are not reported and this presents a particular challenge to any assessment of “moral character” involving an evaluation of past instances of misconduct. The issue of non-reporting was highlighted as a foundational problem during our interviews. It is attributed to diverse factors including anxiety about backlash and the absence of safe and accessible avenues for reporting. While the social and professional costs of any form of reporting are always high, they are extremely high in the international criminal law field, in which silence shrouds many forms of negative experiences – from discrimination and bullying, to harassment and abuse. In a system with few permanent posts, the experts explained, young, junior lawyers find themselves in a very precarious position, especially if they want to remain in the field. Therefore, reporting – whether you are a victim or witness – is, for many, out of the question.
The experts commented on the importance of creating safe spaces for reporting, while allowing anyone who is the object of an allegation to respond. For example, our interviewees suggested that the selection committee could consider inviting independent references, including anonymous and non-public feedback. It was noted that the best assessments of candidates often come from former colleagues who worked closely with them. The selection committee could then put any allegation before the candidate and provide them with an opportunity to respond and counter any allegations if they wish to do so. However, any request for feedback from the public at large could only be implemented once the names of the candidates have been made public. A particular challenge is that the Terms of Reference for the selection committee provides that once the shortlist of names is made public, all candidates will have been interviewed and the work of the committee will have come to an end.
This calls for creativity on the part of the selection committee to devise ways to obtain feedback about candidates before interviews and shortlisting. For example, the committee could proactively seek references through bilateral contacts. It could also consider making names public before finalizing the list in order to allow such feedback and provide candidates with an opportunity to respond. Of course, the committee must take into account the reliability of sources at all times.
In this respect, the experts noted that there are many difficulties in confirming accounts of past misconduct, which often require hiring committees to seek corroborating evidence from individuals. They underscored, however, that accounts are often gendered, and that it is frequently powerful men who are believed, while less powerful women are not as likely to be taken seriously. Therefore, efforts should focus on creating a process that allows for safe reporting and on minimizing the personal and professional costs of reporting – while concurrently considering due process limitations.
Qualifications and Moral Qualities
Having the right qualifications for the job of the ICC prosecutor is crucial and the committee has been entrusted to present a shortlist of those most qualified applicants. What weight should moral qualities or ethics be given in the assessment process?
Our experts felt that while #MeToo has not changed practice, it has changed expectations. Situations that were previously discarded as insignificant are now taken more seriously. There has also been a change in the way individuals perceive their role in a given situation, including their complicity and accountability. This applies to bystanders to inappropriate behavior, who now may be more compelled to come forward and report the bad conduct themselves.
Despite these changes, the #MeToo movement has yet to significantly affect the field of international criminal law. Among senior managers and across institutions, one expert noted that the threshold for what constitutes “poor” behavior is typically very high and especially those in positions of power are not overly concerned because the structures and institutions that have protected them throughout their careers remain firmly in place.
While there is a widespread awareness of wrongdoing, perpetrators are often connected and invested in ensuring that complaints do not surface. On top of this, the experts explained there is a sense that you are working at these institutions for the cause of human rights, coupled with an unspoken obligation not to bring negative attention to the overall project. When you are seen “fighting the good fight,” this makes unacceptable behavior “acceptable.” The field of law places an expectation on individuals to be stoic, strong, and masculine – and anything else is therefore viewed as a weakness.
Our experts observed that there are enough highly qualified candidates that the question of ethical values and qualities and sensitivity to marginalization and discrimination can be a central consideration without sacrificing the issue of qualification. As such, because the field of highly qualified people is sufficiently broad and deep, there should be no tug of war between qualifications and ethical characteristics.
The Committee on the Election of the Prosecutor is charged with the important task of identifying the best candidates for the position. Their work includes reviewing applications and interviewing candidates, creating a shortlist of applicants, and presenting their work to all state parties of the ICC to make a final decision. When vetting candidates for this powerful position, which, according to the Rome Statute, has “full authority over the management and administration of the Office [of the Prosecutor], including the staff, facilities and other resources,” it is imperative that appropriate attention be spent on candidates’ ethical outlook and behavior.
The position of ICC prosecutor is emblematic not only of the court, but of the global fight against impunity more broadly. Now more than ever, our experts noted, leaders have to be accountable to their most vulnerable staff. In environments where speaking out against harassment and discrimination creates risks, it is for our leaders to turn these experiences around and to make reporting a safe and rational act. As one expert put it, the next prosecutor would have to be “very brave” to address any future allegations of misconduct and shift harmful power dynamics at the court. In light of the ICC’s mandate to prosecute the most serious crimes that concern the international community, and mindful of its increased focus on combatting sexual and gender-based violence, if the prosecutor cannot stand up for those who are the most victimized within the four walls of the court, they risk losing legitimacy worldwide.
Coline Schupfer is an Aryeh Neier Fellow at the Open Society Justice Initiative focusing on international justice, national criminal justice reform, and pre-trial justice issues. She holds a LL.B. in Law with French from Sheffield University and a M.St. in International Human Rights Law from Oxford University. Follow her on Twitter: @colineschupfer.
Taegin Reisman is an associate legal officer for international justice with the Open Society Justice Initiative, and edits and manages the International Justice Monitor website. Follow International Justice Monitor on Twitter: @ijmonitor.