At the conclusion of the Assembly of States Parties to the International Criminal Court (ICC), states adopted a resolution on the nomination and election of judges (pdf) that is a welcome step to improving the process for how judges are elected to the bench at the ICC. Notably, there is a requirement that the Advisory Committee on Nominations "create a standard declaration for all candidates to sign that clarifies whether they are aware of any allegations of misconduct, including sexual harassment, made against them." This is something the Open Society Justice Initiative had recommended in its recent report on improving the nomination and election of judges to the court.
On this important topic of moral character, integrity, and ethics of elected ICC officials, ICC staff members themselves have also expressed their views in a statement from the Staff Union Council. The Staff Union of the ICC represents, safeguards, and promotes the rights, interests, and welfare of all staff members of the ICC and strives to improve overall conditions of employment and work. In the statement, the Staff Union Council submitted that "the requirements of 'highest moral character, impartiality and integrity' should be regarded as being of equal importance as the requirements of competence and experience."
For the committees and experts that are and will be engaged in selecting candidates for judicial and prosecutorial elections, it is imperative to listen to this call from ICC staff when evaluating applicants. As noted previously, leaders must be accountable to their staff, especially those most vulnerable to misconduct.
International Justice Monitor has received permission from the ICC Staff Union Council to republish their statement publicly. The full statement, which was originally issued on December 6, 2019, is below:
The Staff Union Council hereby calls on the States Parties to place strong emphasis on the issue of high moral character and integrity in the future consideration of judicial and prosecutorial candidates for the ICC, and ensure that the processes that are adopted and utilised in these elections properly take this important principle into account.
The nominations and elections of high-quality judges are deservedly a current focus of the States Parties' work. Consultations are ongoing between the States Parties for a new resolution on the review of the procedure for the nomination and election of judges, to be adopted at this year's Assembly of States Parties (2-7 December), which aims to strengthen these processes and allow for the most competent and qualified judges to be elected to the Court. Next year's work on the Review of the Court will likewise bring increased scrutiny to the process of electing the new judges, as well as the next Prosecutor.
The Staff Union notes that the draft resolution is focused almost exclusively on the requirements to be found under article 36(4)(b) of the Rome Statute, that describe the competence and experience ICC judicial candidates should possess. Article 36(3)(a) of the Rome Statute however provides that "The judges shall be chosen from among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices." Articles 42(3) and 43(3) likewise include language regarding the high moral character of the Prosecutor and the Deputy Prosecutor, as well as the Registrar and the Deputy Registrar.
The Staff Union Council submits that the requirements of "highest moral character, impartiality and integrity" should be regarded as being of equal importance as the requirements of competence and experience. But what does this mean in practice? The Council believes that at least some additional aspects of these requirements should be given more attention than has been the case until now. Notably, issues concerning harassment, bullying, discrimination and abuse of power should be addressed in a stronger manner in the process of nomination and election of the Court's elected officials.
Bullying, harassment, discrimination and abuse of power have been already shown to negatively affect the wellbeing and health of the staff of the Court, and lead to a poor work climate, higher rates of sick leave and medical claims, and decreased engagement and work productivity. In addition, in the absence of an entirely clear and detailed legal framework that would ensure that any abuse by elected officials against staff is properly regulated, it is all the more the States Parties' responsibility to provide for processes that ensure that candidates with past history of abuse or those who have not been shown to deal effectively with such abuse, are not elected to the ICC.
Your Staff Union Council