The Coalition for the ICC calls for the adoption of historic permanent vetting process for all ICC elections: new position paper out
The Coalition for the International Criminal Court (CICC) calls on the Assembly of States Parties (ASP) to adopt a permanent vetting process that is purpose-built and set up to successfully evaluate whether candidates possess a high moral character, as required in the ICC Rome Statute. The CICC Elections Team has issued a new position paper on the initial draft terms, prepared by the ASP leadership, for the permanent vetting process for all International Criminal Court (ICC) elections. The following article provides key updates and recommendations on how to ensure the process – set to be established later this year – is comprehensive and effective.
Why vetting in ICC elections?
Only 42% of respondents in a 2022 ICC staff survey replied positively to: “The ICC takes allegations of discrimination, harassment, sexual harassment or abuse of authority seriously,” while 24% agreed with the statement: “The ICC has an open and honest culture.” Not only are these survey results troubling, they also contrast with the ICC Leadership Framework advice for senior ICC leaders to “promote personal and team responsibility for the realisation of a healthy and safe workplace. Build trust. Be a role model of this behaviour” and to “intentionally build an organisational culture of ethics and integrity.”
Electoral vetting is needed to comply with the ICC Rome Statute requirement that senior ICC and ASP officials have a high moral character. The call for vetting of candidates has grown following misconduct complaints about candidates in past elections, as well as reports, independent evaluations, and staff surveys identifying a problematic workplace culture at the ICC. The 2020 Independent Expert Review (IER) of the ICC and the Rome Statute System delivered a major wakeup call, when it reported the Court seems to “suffer internally from distrust” and a “culture of fear.” IER experts say they “heard frequent complaints that the culture of the Court’s workplace was adversarial and implicitly discriminatory against women. They heard a number of accounts of sexual harassment, notably uninvited and unwanted sexual advances from more senior male staff to their female subordinates.”
In the wake of the worrying 2021 and 2022 ICC staff survey results that follow several reports and independent evaluations detailing the ICC’s problematic workplace culture, the need for impeccable leadership at the Court has never been more strongly felt. Most recently, the OTP states in its new 2023-2025 Strategic Plan that the “assessments made by the IER, staff surveys and the OTP Ad Hoc External Workplace Culture Panel point to a working culture riddled with issues such as lack of accountability, poor leadership and problematic behaviour.”
Changing workplace culture starts at the top, and this can only take place once the ICC implements new systems to ensure senior leaders have impeccable backgrounds and the know-how to empower staff and address misconduct, and crucially in a way that resonates with staff. The Court is on its way there, and at the 22nd session of the ASP (ASP22) in December 2023, the ICC is set to become the first international justice institution to introduce a permanent vetting process for all elected officials. The CICC Elections Team recognizes the significant progress States Parties have already made by adopting the three pioneering ad hoc processes for the recent deputy prosecutors (2021), registrar (2022), and judicial (2023) elections (for more info see this informal table comparing the three ad hoc processes with comments and recommendations), and urges States to stay the course in order to successfully adopt the permanent vetting process at ASP22.
Where are we now?
At the 21st session of the ASP in December 2022, the Bureau of the ASP agreed to continue consultations with States Parties, the Court, and civil society for the development of a vetting process for all elected ICC officials, with a view to adoption of a vetting process as soon as feasible and no later than ASP22. On 5 April 2023, the ASP President, Silvia Fernandez de Gurmendi, drafted initial terms of reference (‘draft ToR’) for the ICC’s permanent vetting process, built from the first three ad hoc vetting processes, and currently being reviewed in consultations with States Parties and civil society. Then in June 2023, the Bureau of the ASP appointed Nicolás E. Ortiz Marín (Ecuador) and José Juan Hernández Chávez (Chile), as co-facilitators on the establishment of a due diligence process for elected officials. The co-facilitators are consulting with States Parties, non-States Parties, the Court and NGOs, and aim to submit a draft report in the fall for the consideration of States Parties.
Key recommendations for the permanent vetting process
The Coalition fully supports the establishment of a permanent vetting process and acknowledges ASP President Fernandez de Gurmendi’s leadership in spearheading this initiative. The initial draft ToR for the permanent process provides a solid framework which can be further strengthened and developed. This will enable States Parties to adopt a process at ASP22 that is robust and purpose-built – to ultimately ensure it is set up for success and can deliver on its core objective to effectively assess candidates’ high moral character.
The CICC recommends that States Parties continue to engage in two-way dialogue with civil society organisations and experts which have been actively promoting vetting in ICC and ASP elections since 2020. Since vetting is novel for international institutions, parallels and best practices should be gleaned from existing domestic and regional processes.
What should the vetting process include?
Define ‘High Moral Character’: vetting is being introduced chiefly to ensure candidates have a ‘high moral character’, yet this terminology is not defined in the Rome Statute, and it takes on a variety of meanings. A definition should be developed, to provide clarity and certainty for all stakeholders as recommended in the Report by the facilitators on the third election of the Prosecutor of the ICC – Lessons learnt (paras 90-91).
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Equally apply vetting to ASP elections: the permanent vetting process is set to apply to “all elected ICC officials” which should include applicable ASP elections requiring officials to have a high moral character, including elections for the Advisory Committee on nominations of judges of the ICC and the Trust Fund for Victims Board of Directors.
Amplify confidential reporting channel: a communications strategy should be developed to ensure widespread visibility and dissemination of the confidential reporting channel for complaints against candidates. Public information should include the names of the shortlisted candidates, and materials need to be translated into all languages of states where candidates are nominated/apply from.
Provide a safe process for complainants: anonymous complaints should be permitted in the first instance, just as they are for complaints of prohibited conduct at the ICC. This enables the IOM to begin their review, and if there is insufficient corroborative information, then their identity may be required in order for the review to proceed. At that point, the complainant can decide whether to share their identity or not.
Require reputational interviews: at least one mandatory reputational interview should be conducted with a non-referee per candidate. Similar to the judicial election vetting process, the draft ToR indicates that ‘where feasible’ in-depth background checks shall include contacts with employees who may have worked with the candidates. It would be unfair for the IOM to conduct reputational interviews for some, but not all candidates. Moreover, interviews with non-referees are often the only avenue to receive honest views about candidates.
Clarify final stage of process: The conclusion of the vetting process needs to be more clearly spelled out, including the fact that the IOM does not make findings, and rather that the IOM presents preliminary findings of potential concerns if a candidate’s high moral character is in doubt to the decision-making body. The process should specify what occurs after negative preliminary findings are reported to the relevant decision-making body. Will the decision-making body decide whether to disqualify the candidate based on the IOM’s report, and if yes, what will be the modalities?
Include vetting in the regular budget: to ensure that the IOM is able to perform these additional vetting duties, adequate resources need to be allocated to the permanent vetting process from the regular ICC budget.
Read more about Vetting for all ICC and ASP elections on the Coalition’s website, and the latest CICC Elections Team Paper, At a crossroads: Recommendations to States Parties on developing a permanent vetting process that is purpose-built and the comparative analysis chart assessing the first three ad hoc vetting processes and the draft terms for the permanent vetting process, with comments and recommendations.
