By Gabrielle Louise McIntyre
The election of Karim Khan QC as the next Prosecutor of the International Criminal Court earlier this year signified the end of a difficult and protracted process fraught with politics and tainted by rumours concerning the integrity and moral suitability of some candidates.
In many respects, the election mirrored the politicking and gossip that surround most international and regional elections, where the strategies of states remain opaque and questions about candidacies are contained within diplomatic circles. However, it was also different, thanks to the involvement of civil society organisations, whose attention laid bare the competitive and underhand nature of the process, and paraded those issues on the international stage. This visibility has prompted calls for reflection on the election processes and their reform.
Yet, while it is clear that reform is indeed necessary, it is unlikely that decades of practice around elections will be easily swept aside. Nonetheless, at a minimum, steps could and should be taken to ensure that candidates are treated fairly. This could be achieved by establishing processes that are underpinned by the integrity sought in the character of the candidates.
In April 2019, the Bureau of the Assembly of States Parties adopted the terms of reference for the Committee on the Election of the Prosecutor with the intention of identifying a consensus candidate agreeable to all members of the Assembly of States Parties (ASP). The committee was made up of five diplomats, representative of the five regional groups of the United Nations, a division also adopted by the ASP. The committee was to be assisted by a panel of five experts, again representative of the regional groups, but none of them sharing the nationality of a member of the committee. States Parties and civil society organisations were permitted to propose persons with expertise in international criminal justice for the Panel of Experts, but the ultimate selection remained the duty of the Bureau.
The role of the committee was to scrutinise applications, identify, and interview the best candidates, and present a shortlist to the ASP. With the composition of the committee and the Panel of Experts representing the five regional groups, the Bureau designed what was touted as a “transparent and inclusive process” aimed to ensure that the most meritorious applicants were picked. The process was purportedly designed to leave politics at the door and allow selection based on merit, without the interference of member states, which were discouraged from making nominations and/or endorsements.
This was an admirable attempt, a stark deviation from general practice, where political and other interests, and certainly not merit, are usually the deciding factor. Indeed, it is established practice that elections for international and regional positions are exercises in horse-trading and opportunities to maximise national interests. The committee, made up of experienced diplomats, must have been acutely aware that it might not be entirely possible to keep out political interference in its quest to identify a consensus candidate.
This would become clear shortly after the committee announced its shortlist of four candidates on 30 June 2020. Its report said it had interviewed 14 applicants out of 89 completed applications. The endorsed candidates were Morris A. Anyah (Nigeria), Fergal Gaynor (Ireland), Susan Okalany (Uganda), and Richard Roy (Canada). The list was almost immediately met with political objections.
Notably, a political consideration the committee might not have taken into consideration was the expectation of regional rotation of the Prosecutor – a strong state practice. Indeed, it had long been considered in diplomatic circles and by others interested in the court that it was the turn of Western European and Others Group (WEOG) to head the Office of the Prosecutor.
The first Prosecutor, Luis Moreno Ocampo, had come from the GRULAC group (Latin America and the Caribbean) and the second one, Fatou Bensouda, was from the African group. It was assumed that candidates from the two regions would be excluded. Instead, two of the short-listed candidates, Morris A. Anyah and the only female candidate, Susan Okalany, came from the Africa. The regional rotational practice meant that neither could be considered viable candidates upon which to build a consensus.
Fergal Gaynor from Ireland and Richard Roy from Canada were both WEOG representatives. However, another factor the committee would have been acutely aware of purported to exclude the Canadian candidate; notably, Article 42(2) of the Rome Statute, which provides that the Prosecutor and the deputies must be of different nationalities. This seemed to have ruled out Richard Roy because the current Deputy Prosecutor is Canadian. His term, expiring in March 2022, overlaps with that of the incoming Prosecutor, who takes office on 16 June 2021. That left only Fergal Gaynor. It was not surprising that representatives of some member states cited conspiracy theories to explain the actions of the selection committee, which they accused of presenting a fait accompli in the form of Gaynor.
The fact that the purported fait accompli was the outcome of the committee’s adherence to a strictly merit-based approach to determine the suitability of candidates was ignored. Nobody bothered to point out that nowhere in its terms of reference was the committee directed to take into account the practice of regional rotation or nationality (other than a generic reference to give due regard to geographical balance). Yet these issues were bound to play a decisive role in the selection of the Prosecutor. The WEOG was unlikely to agree to give up its “turn” to have its representative take up the mantle of Prosecutor regardless of the merits of the candidacies.
States Parties and civil society organisations were also perplexed by the absence of well-known applicants who had been long identified as best placed to take up the job. These included Serge Brammertz and Karim Khan. Questions abounded as to why these candidates, well known in the international community for their leadership and expertise, had not made the list. There appeared to be no response, mostly because applications for the position of Prosecutor are confidential, and only the names of the shortlisted candidates can be made public. The perceived lack of transparency surrounding the exclusion of the high-profile candidates propelled the gossip mill, feeding the suspicions concerning the process.
The uproar prompted the Bureau of the Assembly of States Parties to re-open the list to include some of the candidates that had been interviewed. This led to the inclusion of Karim Khan, among others, on the list of eligible candidates, but not Serge Brammertz, who was no longer interested after what had happened.
For many, something had gone seriously wrong with the committee process. It appeared there was much evidence to support that assessment. Throughout the process, civil society had called for particular attention to the requirement that candidates be persons of high moral character and integrity. This had led to the amendment of the committee’s terms of reference and the adoption of a vetting process typically applied to staff. In addition, the committee had agreed to receive negative information on candidates. This would no doubt place the committee in a difficult position with respect to determining the veracity of information received, given the limitations of its terms of reference and inability to accord due process to impugned applicants. From a perspective of fairness, perhaps it is a concession that should not have been made.
Although the committee admitted that its vetting procedures were less than comprehensive, it expressed confidence that the four candidates on the shortlist could stand public scrutiny. When the list was expanded, the committee confirmed that all the additional candidates had been subject to a vetting process, but fell short of expressing the same confidence in their ability to stand muster.
The adoption of a half-baked vetting procedure opened the door to and encouraged the propagation of rumours and allegations about candidates’ integrity and moral fitness for office. The absence of a proper mechanism to present concerns meant that civil society organisations resorted to blogs and other social media platforms to communicate their disquiet about the allegations. To accommodate due process concerns and in the interest of fairness, the allegations being shared with civil society were expressed in a generalised rather than specific manner. There was little or no indication given of the substance of the claims, only that they were “serious”. This was counterproductive as it had the effect of impugning the integrity of all the candidates and at the same time denying them the right of response.
Some of the allegations were indicative of real issues concerning the moral calibre of some candidates. However, there were credible concerns about the veracity and motivation of some of the accusations. One individual was accused of conducting a sustained and malicious campaign aimed at undermining one candidate, all because of professional jealousy and personal animosity. There were also reports of some States Parties seeking out “dirt” from civil society organisations to help them try to impugn the integrity of the candidates they opposed. These unsavoury reports are typical of the competitive and political nature of the processes surrounding high-level international appointments. There are no holds barred when national interests are at stake, particularly when competing states have “a dog in the fight”, or opponents want to ruin a candidate’s professional advancement for personal gain. The backbiting is enough to discourage many otherwise qualified prospective candidates from exposing themselves to such a process.
The search for a consensus Prosecutor brought into focus the issue of how to assess high moral character and integrity in a fair and credible manner. While whispers and rumours have become an integral part of high-level candidacies, there can be no integrity in relying on anonymous allegations or unverified claims to determine a candidate’s fitness for office. If we want to ensure that candidacies meet the moral requirement of high office, then we must ensure that our assessment is made with the same integrity that we are seeking to verify.
The bar is especially high in the realm of international criminal justice, which is a highly competitive environment. As in other workplaces, situations that may be considered revealing of moral calibre are often nuanced and may be open to interpretation. For example, issues of poor staff performance addressed by managers may be interpreted as bullying. A senior official’s acknowledgement of an intern’s unpaid contribution by offering lunch or dinner could be interpreted as evidence of a pattern of sexual harassment and misconduct. Indeed, myriad situations and the potential for differing characterisation of events and incidents is endless, and subjective opinions or observations may not always be a reliable measure of the integrity of a person. This underscores the necessity of adopting appropriate and sophisticated procedures to properly examine allegations made in a fair and comprehensive manner, and especially accusations made by a third party or witness.
The process should be designed to repel rather than embrace unproven whispers and rumours about candidates, and address credible and timely allegations. Old allegations that were not pursued through accepted channels should not be permitted to re-surface without thorough investigation. More importantly, for any allegation to be accorded any credence, it should not be made behind the cloak of anonymity. To be fair and deter maliciously motivated allegations, candidates should not only have the right to know the identity of their accusers, they should also be given the right to respond.
By demanding due process and fairness, we can begin to bring some integrity to the process. Indeed, if we are going to demand a high standard of integrity and morality from candidates, then we must be in a position to demonstrate it. In any case, a fair and decent process that accords candidates due process is far more likely to attract candidates of integrity than one that relies on gossip and rumours.
Gabrielle Louise McIntyre is Chairperson, The Truth, Reconciliation and National Unity Commission, Seychelles, and Chairperson, Women’s Initiatives for Gender Justice. She has been chef de cabinet of the president of the International Criminal Tribunal for the former Yugoslavia for many years.
 While 144 applicants originally applied, only 89 of those 144 submitted complete applications.
 See Letter of Kenyan Ambassador Lawrence N. Lenayapa to ASP President Kwon, dated 13 July 2020.