Searching for the Next ICC Prosecutor: Where to from here?

The search for the next International Criminal Court (ICC) prosecutor continues. Much has happened since the vacancy announcement was published on August 2, 2019 and there is still a long way to go.

The Committee on the Election of the Prosecutor (CEP ), duly established by the Bureau of the Assembly of States Parties (ASP) in 2019, was mandated to “establish by consensus an unranked shortlist of three to six of the most highly qualified candidates” for the position of Prosecutor of the International Criminal Court”, and “prepare a final report which shall specify in detail how the shortlisted candidates meet the requirements for the position.” The CEP was assisted by a panel of five independent experts, one from each regional group, who were also appointed by the Bureau.

The CEP received 89 completed applications and with the assistance of the Panel of Experts, whittled that number down to a long list of 16 candidates, 14 of whom went through the entire process after two dropped out for personal reasons. The CEP issued its final report in June 2020 detailing its process (including unprecedented and welcome background checks and security screening of the longlisted candidates) and presenting its short list. The shortlisted candidates are: Morris A. Anyah (Nigeria), Fergal Gaynor (Ireland), Susan Okalany (Uganda), and Richard Roy (Canada).

More Engagement with Candidates

The CEP’s short list has attracted a lot of attention and unjustified criticism. Some observers have said that the list was a surprise including that some of the shortlisted candidates are relatively unknown and some of the “usual suspects” were not included. All of this speculation made the ASP-organized hearings prime time viewing. Court watchers and supporters got their first glimpse of the candidates on 29 and 30 July. The hearings lasted for three hours on each day and were co-moderated by states parties and civil society.

While the opportunity to engage with the candidates was welcome and constituted a crucial first step, the hearings were less than ideal given the technical difficulties on the second day, the restricted time and the limited opportunity available for immediate follow-up questions.  In order to truly understand the candidates and their vision for the Office of the Prosecutor, further opportunities for engagement should be facilitated, ideally by the ASP. A different format, such as an in-depth, public, one-on-one interview, where follow-up questions are included, with neutral and well-informed moderators who ensure fairness and transparency could be the way to go.

Thorough Vetting

In a series of communications, the Open Society Justice Initiative and other organizations have repeatedly called for thorough vetting of all candidates, including an open letter to the CEP on February 19, 2020 and one to the ASP Bureau on 10 September 2020. The CEP took unprecedented steps and included a background check and security clearance for all 14 candidates. Hard as it may be to believe, such procedures are standard when one applies for a job at the ICC but never, in the history of the Court, have these procedures been applied to elected officials, holders of the institution’s highest posts. The CEP took crucial, necessary steps to change that. It did, however, state 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.” The limitations noted by the CEP included that not all of the national criminal record offices contacted responded to the CEP’s inquiries.  It also noted that, “references offered by a candidate will likely be inclined to respond only with favorable assessment,” implicitly underlining the importance of checks that go beyond those provided by the candidate.

While the CEP is therefore to be commended for the important ground it has covered, as acknowledged, more should be done. In particular, Justice Initiative and other civil society representatives are concerned that the steps taken to vet candidates, so far, seem to have been limited to reference checks and security clearance. We believe it is vital that the ASP builds on the processes initiated by the CEP and — using the time now available before this December’s election — take further steps to undertake a more thorough vetting. Such a vetting should include confidential interviews with former colleagues, supervisors, subordinates, and others who have closely interacted with the candidates. This form of vetting exists in some domestic jurisdictions for other positions that require high moral character such as joining the bench.

In British Columbia, Canada, judicial candidates are screened and approved by the Judicial Council. The Judicial Council asks the British Columbia Branch of the Canadian Bar Association and the Law Society of British Columbia to investigate each applicant. “Persons referred to, and other persons not referred to, in the [candidate’s] application may be contacted, unless the applicant specifically requests that they not be contacted, and provides reasons for that request.” Candidates are also asked to sign a form that authorizes the Judicial Council to contact a range of people including “colleagues in community and professional organizations with which [the applicant is] or [has] been associated.”

In Kenya a Judges and Magistrates Vetting Board was established and commenced its operations in 2012. It was created amidst deep concerns about corruption plaguing the Kenyan judiciary. This Vetting Board hasextensive reach and is empowered to gather information from any source, “compel” the production of that information, interview “any individual, group or members of organizations or institutions” and “hold inquiries for the purposes of performing its functions.” The Board is also not bound by strict rules of evidence and is “not to be subject to the direction or control of any person or authority.”

According to the Act that established the Board, in determining the suitability of a judge or magistrate, the Board considers numerous factors including the applicant’s integrity, track record and any information received from bodies such as: the Ethics and Anti-Corruption Commission; Advocates Disciplinary Tribunal; Advocates Complaints Commission; Kenya National Human Rights and Equality Commission; National Intelligence Service; National Police Service Commission and; the Judicial Service Commission.  While implementation has not been perfect, this remains a good example of how the foundation for comprehensive vetting can be laid.

In the United Kingdom (UK) the Judicial Appointments Commission (JAC) is responsible for the assessment of candidates and it conducts background checks to assess good character. The self-disclosure process is a big component and even matters cloaked by non-disclosure agreements are to be disclosed to the JAC. The JAC has an 8-page Good Character Guidance document that gives judicial candidates a detailed account of what should be disclosed and information as to the kinds of checks they conduct. 

The JAC conducts character checks with various bodies including, the Criminal Records Office, Her Majesty’s Revenue & Customs, The Insolvency Service and professional regulatory bodies (for example, Bar Standards Board, Solicitors Regulation Authority, Chartered Institute of Legal Executives and General Medical Council). The JAC also checks the candidate’s social media. Again, the JAC process is not flawless as there have been questions about its merit related criterion for judicial candidates, but useful lessons can be drawn.

The American Bar Association’s Standing Committee on the Federal Judiciary evaluates the professional qualifications of nominees for the United States (US) Supreme Court.  This includes looking at “integrity, professional competence and judicial temperament.”

In order to get a sense of a nominees’ integrity the Committee conducts extensive interviews with individuals who are familiar with the nominee including other judges and lawyers. According to the ABA’s reports, typically, they interview 40 or more people who are familiar with the nominee, “more complex investigations may result in over a 100 interviews.” In order to ensure the interviewees speak frankly, the Committee guarantees confidentiality.  The Committee also interviews the nominee providing an opportunity for them to address any adverse information thereby ensuring due process.

At the end of the process, the Committee provides a rating of “not qualified,” “qualified,” or “well-qualified.”  The Committee’s role is purely advisory and the White House and Senate are free to consider the Committee’s rating of a nominee or not but their process shows that vetting by way of interviewing those who have worked with a candidate or nominee can be helpful in assessing moral character. As with all the examples, no process is perfect and the ABA’s ratings have been questioned particularly with regard to Brett Kavanaugh.

These are just a few examples of the shape vetting can take and they warrant consideration for   this ICC election cycle and all future elections at the Court. While there will always be shortcomings and there is an added layer of complexity given that this is an international selection process as opposed to a domestic one, establishing the process is vital.  

Other vetting options include hiring professional, international companies that specialize in investigations and background checks for hiring purposes. These specialized companies go further than the reference checks as they conduct independence checks, government exposure checks, reputational interviews and more to determine the suitability (including high moral character) of the candidate for the role in question. It goes without saying that vetting should always be conducted within the bounds of the data protection laws, and with regard to due process.

As pointed out previously, rates of sexual harassment and other forms of workplace misconduct are high in international organizations, including at the ICC. This is unacceptable and exemplary leadership can positively change the situation. Institutions such as the ICC should do their utmost to ensure that elected officials have an impeccable record and embody the “high moral character” requirement of the Rome Statute.  Thorough vetting is long overdue and should have been in place from the court’s inception.

Where to from here? Hopefully, further opportunities to engage with all the candidates will be created and thorough, professional and impartial vetting will become the norm.

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