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 February 3, 2021. Angela Mudukuti, Associate Advocacy Officer with the International Justice program, delivered the statement. In the interest of transparency, we are making the content of our statement public.

The Justice Initiative condemns the failure by the Assembly of States Parties’ (ASP) leadership and states parties to conduct a proper and thorough vetting of all candidates. The election should not proceed without putting this critical safeguard in place.

Vetting is essential to ensure that all candidates meet the Rome Statute’s high moral character requirement. We first raised this matter publicly in November 2019, and have written at least six private and public letters and statements to ICC states parties, the ASP Bureau, and the ASP Presidency since, emphasizing the importance of vetting as well as providing concrete and actionable recommendations. The statements of surprise from some quarters about the existence of active complaints against several of the candidates are simply not credible, and the position that it is now too late for vetting is unacceptable. The Court’s reputation is at stake, as is the well-being of its staff. As we know from the Final Report of the Independent Expert Review, bullying and harassment are common at the ICC, making it essential that its leaders be above reproach.

This is about more than concerns over specific individuals; it is about establishing a practice that will ensure that all leaders of the ICC are indeed of high moral character. The lack of an impartial process properly equipped to protect the rights of complainants and candidates alike means that member states have failed to take a basic step that would help guarantee the high moral character of the future prosecutor of the world’s only permanent criminal court.

To those who bemoan unfounded rumors, we say this: it is the lack of an avenue to channel allegations that helps such rumors spread. The onus to substantiate an allegation is not on civil society or states. It is the job of states — and the ASP’s elected leadership — to put in place a mechanism that can hear and then fairly determine the veracity of complaints.

These mistakes must not be repeated. The time to create a permanent vetting mechanism that can be in place for the next round of elections, including the judicial elections in two years’ time, is now. The Justice Initiative urges states parties and ASP leadership to make the establishment of such a mechanism a priority and begin the necessary groundwork immediately after the prosecutor’s election. We stand ready to offer more specific advice on actions that the ASP could take to ensure that a comprehensive vetting mechanism is established.