By Failing to Screen ICC Prosecutor Candidates for Sexual Misconduct, States Put Court at Risk

The states that ultimately elect the next prosecutor of the International Criminal Court (ICC) have only minimal measures in place to screen candidates for histories of committing, condoning, or tolerating sexual harassment, even though “high moral character” is one of the requirements for the position. With this deficit, states risk a debacle that could devastate an institution struggling to tackle internal problems and attacks by powerful states.

In 2020, States Parties to the Rome Statute have a remarkable—and perhaps unique—opportunity to strengthen the ICC. They will elect a new prosecutor and six new judges, and an Independent Expert Review process will recommend reforms. These could help the ICC, under new leadership, to overcome longstanding internal problems that have led even the court’s ardent supporters to grow weary of its inefficiency and aloofness from the communities most affected by its work.

With real progress within reach, imagine what would happen if allegations emerged that the newly elected prosecutor had a history of sexual harassment inside or outside the workplace, or had tolerated or condoned sexual harassment in previous positions. Currently, this scenario is all too possible.

The #MeToo movement has swept through journalism, politics, sports, and the entertainment industry. Sexual exploitation and harassment scandals have rocked humanitarian aid agencies, including Oxfam and Save the Children. At the United Nations, a survey revealed that one third of staff and contractors had been sexually harassed over a two-year period. Sexual harassment and abuse scandals have forced out the head of UNAIDS, the International Civil Service Commission, and the head of the UN mission in Central African Republic, where peacekeepers engaged in extensive sexual abuse of local civilians. A recent survey by the International Bar Association revealed that sexual harassment is all too common in the legal profession.

The #MeToo movement has not reached the field of international criminal justice, but the day of reckoning is near. Many who have worked at international criminal tribunals recognize the irony of working in institutions dedicated to securing accountability for crimes, including sexual violence, internationally, while they fend off sexual harassment, discrimination, and inappropriate behavior from the office down the hall.  

The reckoning cannot come fast enough for those—mostly women—who face sexual harassment and abuse. Nobody should have to work in an abusive workplace. Institutions that incubate or accept an environment of sexual harassment and discrimination are inherently dysfunctional and inefficient. And when such institutions have a field presence in multiple countries, the potential for sexual exploitation and abuse is great.

If these reasons are not enough to persuade states to prioritize the rigorous vetting of candidates for prosecutor—and they should be more than enough—then states should consider the grave reputational risk insufficient vetting creates for the ICC, as well as the financial implications of possible legal action against it.

At the Special Court for Sierra Leone, in Freetown, I saw firsthand a Wild West environment for international staff, who often acted as if rules did not apply to them. I saw court principals reject an effort to draft a staff code of conduct. Then I watched as allegations of sexual abuse by a senior investigator consumed the court for more than a year and tarnished its reputation, even after an appeals court eventually overturned the investigator’s criminal conviction.

The ICC has not been immune to scandal. In 2008, an administrative tribunal found that the ICC’s first prosecutor, Luis Moreno Ocampo, wrongfully dismissed a staff member who had filed a complaint against him alleging an incident of sexual violence. It ordered the ICC to pay damages. In 2017, an ICC disciplinary board reprimanded [PDF] a defense lawyer at the ICC for sexual harassment of a defense team member.

Sexual harassment is notoriously underreported, and fear of retribution for filing complaints looms large in the small, tight-knit field of international criminal justice, with its limited opportunities for career advancement. Yet states surely do not want to stake the court’s reputation on the silence of those subjected to harassment or abuse by a new prosecutor whose background they failed to scrutinize. Without new vetting measures, however, that is effectively what they are doing.   

What Should States Do?

Early last year, the Bureau of the Assembly of States Parties (ASP) created a Committee on the Election of the Prosecutor to advise states. The Committee has created a longlist of 16 candidates to serve as the next prosecutor. Following interviews in late April, it will recommend a shortlist of three to six candidates.

With regard to issues of sexual harassment and other aspects of “high moral character,” the Committee chair has expressed openness to receiving information in confidence on any potential candidate. The Committee is doing what it can under its limited mandate, but this is gravely inadequate. The names of longlisted candidates are not public, so those with relevant information may not even be aware of the candidacies in question. Once the Committee creates its non-binding shortlist, its mandate expires, and with it, the only existing means of reporting and the opportunity to have a neutral body analyze any relevant information.

States must do more. First, states should publicly pledge to ensure that the next prosecutor will be thoroughly vetted for any hint of association with sexual harassment—through commission or omission. Before the shortlisting of candidates, the ASP’s Bureau should contract with a reputable investigative agency to conduct intensive background checks of all longlisted candidates. The investigation, conducted with due process protections for the candidates, should examine all aspects of “high moral character,” including records on sexual harassment. Bar associations, some local governments, and private corporations do this routinely; it is neither difficult nor controversial.

The findings should be delivered to the Committee and the Bureau before issuance of a shortlist. Once the shortlist is announced, states should commit to review every candidate for sexual harassment histories, including through detailed questioning in private interviews, and with respect for due process. Finally, states should take seriously shortlisted candidates’ responses to hard questions about their plans to create an ICC culture in which zero tolerance for sexual misconduct is a central feature.

With these common sense actions, states can prevent future sexual harassment at the court, and its foreseeable consequences.

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