Vetting for all ICC and ASP elections  

The Coalition for the ICC closely monitors the processes to elect leaders of the ICC and its governing body, the ASP, and has consistently called for the election of only the highest qualified candidates through fair, transparent, and merit-based nomination and election processes at the International Criminal Court (ICC) and Assembly of States Parties (ASP). Since 2020, the Coalition Team on Elections has advocated for a permanent vetting process to be introduced to ensure candidates possess a high moral character as required by the Rome Statute. As a result of civil society advocacy and like-minded States’ efforts to address the vetting gap, the ASP has committed to develop and adopt a vetting process for all elected ICC officials by December 2023. In 2023, the Coalition will continue to work with ICC States Parties in the development of the permanent vetting process and raise awareness and understanding of the essential elements of such a process: safety, transparency, and comprehensiveness.  

The Coalition will also continue to advocate for a due diligence process to be carried out for candidates in the 2023 judicial elections. 

What has been done so far? 

In addition to the qualifications and experience necessary for each role, the Rome Statute of the ICC requires that the judges, prosecutor and deputy prosecutors, and the registrar of the Court “shall be chosen from among persons of high moral character.” The process held in 2020 for the election of the prosecutor evidenced that adequate systems to assess this statutory requirement were necessary.  

After allegations of misconduct surfaced against certain prosecutor candidates in 2020, a lack of a reporting mechanism and vetting process to screen complaints resulted in rumours being circulated on social and mainstream media. The Coalition has raised awareness on the need to adopt a permanent vetting process for ICC elections. 

Both the Committee on the Election of the Prosecutor (CEP) and a panel of experts recognized the shortcomings of the limited vetting conducted in the context of the prosecutor’s election. The CEP reported that: 

[f]uture selection processes – for all elected officers, not just the [p]rosecutor – should include a clear process for determining the ‘high moral character’ qualification of candidates.” 

The panel of experts further recommended the development of a dedicated mechanism for receiving and assessing complaints regarding candidates in future elections of the prosecutor and deputy prosecutors. They highlighted the need for such a mechanism to ensure anonymity of complainants and include adequate whistle-blower protections, stressing that  

“considering, the relatively small world of international criminal justice is a barrier for individuals reporting harassment, the confidentiality of potential victims must be an essential pillar in any process developed.” 

In light of the controversies surrounding the process and the clearcut recommendations, states were prompted to develop ad hoc ‘due diligence’ processes for the deputy prosecutor election 2021 and then again in 2022 for the registrar election.  

At the 20th ASP session in December 2021, ICC States Parties ultimately agreed “to adopt a permanent vetting process for all elected ICC officials by the 22nd session of the Assembly in December 2023”. The ASP also initiated a lessons learnt exercise and in October 2022, published a Lessons learnt report on the third election of the prosecutor, which confirmed that “a large majority of States Parties considered vetting to be central to the election process, and considered that there should be clear rules, covered in the Terms of Reference, from the start.” 

Building on these advancements, in the lead up to the 21st session of the Assembly in December 2022, the Coalition Elections Team called on ICC States Parties to agree on the next steps for developing the permanent vetting process. See here the Coalition Elections Team Paper of November 2022, “Recommendations to States Parties in relation to the development of a Permanent Vetting Process for all ICC and ASP elections”. 

In order to inform the discussions and galvanize consensus around the importance of vetting of ICC and ASP leaders in order to build a safe work environment at the Court at the 21st session of the ASP, the Coalition, together with Human Rights Watch and the Global Justice Center organized a side event co-hosted by Austria, Colombia and Serbia, entitled “Vetting for all ICC elections - the essential elements unpacked” to discuss the next steps in the development of the process and explore the necessary essential elements of a sound vetting process. Panelists included Ambassadors Ksenija Milenković of Serbia and Alexander Marschik of Austria, facilitators of the Lessons-Learnt exercise, Priya Gopalan, International criminal lawyer and gender specialist, Géraldine Danhoui, President of the ICC Staff Union Council, Saklaine Hedaraly, Head of the ICC’s Independent Oversight Mechanism (IOM), and Ekaterina Tomashchuk, Managing Director at Mintz Group. 

At the 21st ASP session, the Assembly decided to continue consultations with states, the Court and civil society towards the development of a vetting process for all elected ICC officials, with a view to adopt the vetting process no later than the ASP’s 22nd session in December 2023.  

Next steps for developing a permanent vetting process in 2023 

In 2023, the Coalition will continue to work towards the development of a permanent vetting process for all ICC elected officials. A formal vetting process is required to receive and assess complaints of alleged misconduct of all candidates, including sexual harassment, racism, bullying, abuse of authority, and discrimination among other forms of serious allegations. Proactive vetting and screening processes have become standard across most industries in order to prevent future misconduct and harm to staff, and ultimately to protect the wellbeing and productivity of the company or organisation. 

A permanent vetting process for all ICC and ASP elections should include: 

1. Terms of Reference with baseline permanent elements required for all elections to ensure that the process is safe, transparent, and comprehensive which include, among others:  

• A confidential reporting channel for allegations of misconduct;  
  
  

• A clear process including which criteria are applied to the evaluation of complaints;
  
  

• In-depth background checks and reputational interviews of supervisors and supervisees. 
  
  

2. Annexes with election-specific elements for ICC elections of the prosecutor, deputy prosecutor(s), judges, registrar, deputy registrar, and ASP elections for the ASP Presidency, Advisory Committee of Nominations of Judges (ACN), Committee on Budget and Finance (CBF), and the Trust Fund for Victims (TFV) Board of Directors.