Grave Concerns about the ICC Prosecutor Election and the Urgent Need for Vetting

The Open Society Justice Initiative made a statement on the ICC Prosecutor Election at the meeting of the European Union’s Council Working Group on Public International Law, focused on the International Criminal Court (COJUR-ICC), on November 3, 2020. Mariana Pena, Senior Legal Officer with the International Justice program, delivered the statement. In the interest of transparency, we are making the content of our statement public.

The Open Society Justice Initiative has observed the repeated delays and continued lack of transparency around states parties’ consultations to elect the next ICC Prosecutor with growing concern. Based on our monitoring, we have concluded that the consultation process – facilitated by the Presidency of the Assembly of States Parties (ASP) – has been derailed mostly because a small number of states have sought to advance their own nationals or other candidates of their choice. Efforts to circumvent the findings of the Committee for the Election of the Prosecutor (CEP/Committee) are precisely what the selection process was designed to avoid: A prosecutor elected not on the basis of an independent assessment of candidates’ merit, but rather on individual state preferences or perceived political arrangements.

The Justice Initiative has long maintained that states should respect the CEP’s work and its conclusions. Efforts to subvert it, quite simply, should stop. If, however, additional candidates from the Committee’s longlist are introduced, then it is essential that all information received by, and in the possession of, the Committee, be made available to states parties. Any prior assessments by the Committee of those candidates must likewise be shared with states parties, including any reasons why they were not chosen for the CEP’s shortlist.

In addition, we remain gravely concerned about states parties’ reluctance to commit to thoroughly vet all candidates under consideration – whether on the CEP’s shortlist, longlist, or otherwise – to ensure that they meet the Rome Statute’s high moral character requirement. Let us be clear: the potential character concerns here are not theoretical. Quite the opposite. The Independent Expert Review report is unambiguous in its findings on bullying and sexual harassment. It is also public knowledge that individuals provided information to the Committee about potential candidates’ misconduct, but the Committee, in its view, lacked the mandate and structure to actually investigate or properly handle such complaints. Other individuals may have similar concerns about candidates, but since they didn’t — and still don’t— know who all the candidates are, they have been effectively silenced.  There is still no process to handle these concerns with the necessary safeguards.

As the #MeToo movement has made painfully clear, it is incredibly hard for victims of sexual harassment and other workplace misconduct to come forward. Sexual harassment in the workplace takes advantage of power dynamics, and unfolds in manners that are not easy to document. Victims who have denounced their predators have faced defamation claims, and some have put their careers and livelihoods at risk.

The lack of a mechanism with the capacity to receive and investigate complaints about any candidates’ misconduct in this election – combined with lack of leadership from the Presidency – has created a vacuum where rumors and gossip float, including regarding some of the candidates’ private lives. That is unacceptable. Vetting demands specific expertise and clear procedures. It is not up to individual state officials to decide if certain rumors are true or false.

The ASP must immediately put in place a transparent, independent vetting process for all candidates that ensures due process and confidentiality. Such a process should include conducting reputational interviews (including collecting views from candidates’ current and former colleagues, supervisors, and subordinates) and investigating any allegations that may come forward of workplace misconduct.

Finally, allow me to make a statement as a woman. When raising the importance of ensuring that the ICC Office of the Prosecutor is not headed by a person with a history of misconduct, in particular a history of sexual harassment, several men and women have told me that “perhaps it is not that serious”, or “isn’t it ok to flirt, date or joke at work when we spend so much time in the office?” It is not up to me to educate anyone on the difference between consensual relationships and harassment, or to explain that sexual harassment may involve more than “flirting” or “joking”, and could entail unwanted physical contact.

States parties cannot simply turn a blind eye to allegations. The ASP Presidency, led by three men and aided by their male assistants, may not have the best composition to tackle this problem. This is why it is crucial that all states parties get serious about this matter and do not simply leave it in the hands of the Presidency.

A wide group of civil society has put out a call for vetting and we will continue to insist that this election cannot proceed – and may well need to be delayed – until all candidates under consideration have been properly and independently vetted. The Justice Initiative stands ready to offer more specific advice on actions that the ASP should take to ensure this is done.

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