This post by Danya Chaikel originally appeared at Opinio Juris as part of our symposium on the Next ICC Prosecutor. Due to the urgency and immediacy of the issues raised in it, I have decided to publish at JiC as well. Danya is an international lawyer who has worked for 15 years across several international criminal courts, tribunals, NGOs, professional bodies and the UN. She is the Secretary of the International Bar Association’s War Crimes Committee and coordinated the International Association of Prosecutor’s Forum for International Criminal Justice for nine years. She began her career in The Hague at the ICC in 2010 in the Investigation Division of the Office of the Prosecutor and later worked for the ICC Presidency and Secretariat of the Assembly of States Parties.
The ICC Prosecutor is first and foremost a leader, who needs to stimulate a work culture that empowers personnel in a safe and supportive environment – so that they can investigate and prosecute with excellence. Not only must the next ICC Prosecutor effectively tackle all forms of misconduct, they must also have a clean record.
In December, the ICC Staff Union Council called on States Parties to give full meaning to the provisions on high moral character of elected officials, including judges and the next Prosecutor, stating that unethical behaviour has “already shown to negatively affect the wellbeing and health of the staff of the Court.” I have also read a 2018 Staff Union report which details an unpublicised survey of 128 staff members – 48.4% of respondents said they had been victims of at least one of the following at the ICC: discrimination, (sexual) harassment, abuse of authority or misconduct. The results also showed low levels of reporting.
The #MeToo movement has thrust these issues into the mainstream, and we are coming to grips with how widespread harassment and mistreatment are within the legal profession and international institutions. The discussions have focussed on sexual misconduct against women who are disproportionately affected, and now the conversation is broadening to cover a range of unethical behaviour across genders, from the minor to the egregious, such as: inappropriate jokes, sexually suggestive comments, threats, abuse of authority, racism, homophobia, gaslighting, sexual assault and other forms of violence.
States Parties should conduct a thorough assessment of the final 6 candidates
Recent civil society campaigning on the upcoming election has focussed on how an assessment of the next Prosecutor’s “high moral character” must take into account past sexual (and other) misconduct. An OSJI article I was quoted in led to a woman approaching me for help with her sexual misconduct complaint, about one of the likely ICC Prosecutor applicants. Her attempt to tell her story is still unfolding, as we know how incredibly daunting it is to make such a claim against a senior member of the international criminal law field. Over the past few months, she’s written that her “stress level was super high”, she feels “stupid to be afraid” and that she will be depicted as “asking for it”. Her fear is palpable.
I mentioned the challenge of supporting this woman to an ICC staff member who warned this could play into the hands of ICC naysayers to further discredit the institution. This is part of a culture of denial – something I have witnessed numerous times in The Hague, and also when my own sexual harassment claim was silenced, as a lawyer in Canada.
The main reason this woman has not yet disclosed her name and full claim to the Committee on the Election of the ICC Prosecutor is because they do not have a comprehensive procedure to process such complaints. The uneven power dynamics in terms of gender, status, wealth and age in this claim are clear. Understandably the woman assumed there would be a procedure providing her protection from retaliation, or a potential defamation lawsuit. She has also made it clear that the due process of the applicant should be upheld so her claim is fairly considered.
The Committee takes these issues seriously and has indicated its willingness to accept credible information. While praiseworthy, this is not enough when the stakes are high, and few people have the courage to come forward. After the longlist of 16 candidates are interviewed by the Committee, States Parties still have the chance to assess the final six candidates before the election of the next Prosecutor. Even though the Committee’s mandate will come to an end, there is still time for States Parties to conduct thorough background checks and to facilitate a fair, transparent and safe procedure for complaints.
Why should States Parties undertake such an inquiry? One of the required competencies in the vacancy announcement is “integrity” and “high moral character”, the latter in accordance with Article 42(3) of the Rome Statute. While these loaded terms are undefined, we can agree that the Prosecutor should not be deceitful, unethical nor have a history of misconduct (such as abuse of power, bullying or sexual harassment).
Global surveys & reports reveal shocking level of misconduct
Unethical behaviour isn’t an OTP or ICC specific problem, rather it’s a global phenomenon. But the Prosecutor has a pivotal role in tackling these issues within the OTP, because of the particularly high moral ground that this office sits upon.
Several surveys in 2019 reveal the extent of misconduct in the legal profession and international organisations. An International Bar Association global survey of almost 7,000 lawyers uncovered widespread bullying and harassment in the legal profession. It found one in two women and one in three men have experienced bullying, and one in three women and one in fourteen men have been sexually harassed.
According to a UN-wide survey commissioned by the Secretary-Generalfocussing on sexual harassment, one third of the 30,364 personnel from across 31 entities said they experienced sexual harassment in the previous two years, with the overall prevalence rate of 38.7%. The Coordinating Committee for International Staff Unions and Associations of the UN System (CCISUA) surveyed over 6,600 members (including staff at the International Residual Mechanism for Criminal Tribunals), covered a broad range of prohibited conduct: 44% of respondents felt they were subjected to abuse of authority, 40% said they were victims of discrimination and 37% experienced harassment at the UN. Over 15% reported suffering sexual harassment, with women nearly five times more likely than men to be victims.
These surveys show a low level of reporting. In the IBA survey, 57% of bullying incidents and 75% of sexual harassment incidents went unreported. The UN surveys show a minority of victims took action, due to mistrust in the system and for fear of reprisals. Per the IBA, 65% of bullied practitioners left or considered leaving their workplace. According to the IBA, “Policies and training do not appear to be having the desired impact. Respondents at workplaces with policies and training are just as likely to be bullied or sexually harassed as those at workplaces without.” These are critical insights for the next ICC Prosecutor to follow-up on.
Misconduct at the ICC
There is no comprehensive public overview of unethical conduct occurring at the Court. However, the ICC’s Audit Committee 2019 interim report provides a “regretful” update on the outcome of a Court-wide survey on values and ethics. The Committee notes that only 19% of respondents were “positive” that cases of bullying, harassment or discrimination are dealt with appropriately. The Committee repeated its call for “creating an institutional culture founded on values and ethics” noting that the survey indicated that ICC staff are often unsure about what is meant by inappropriate behaviour and how they are expected to behave. Moreover, the Court had not communicated intended corrective measures relating to instances of misconduct that staff said they had faced. The Audit Committee recommended that the Court streamline its efforts to achieve a harmonised ethics framework, and develop a Court-wide Ethics Charter.
The Court’s Independent Oversight Mechanism (IOM) made its 2018/2019 caseload public in its annual report. Of the cases closed without a full investigation, two cases which resulted in recommendations to the Prosecutor alleged inappropriate behaviour against the same OTP staff member, including sexual harassment. The complainant did not pursue the allegation due to the potential disclosure of their name. The IOM was unable to conduct an investigation respecting due process rights, without disclosing identifying information of the complainant. Reporting misconduct is often thwarted because victims don’t trust the reporting system and fear retaliation – something the next ICC Prosecutor should remedy.
Important progress at the ICC & OTP is underway, but it is cluttered, provisional and opaque
Several excellent initiatives have been introduced in the OTP and Court-wide. In 2019, the Court’s Principals identified staff wellbeing as key to its overall strategy, which sets harassment and conflict resolution as a priority. A new “Staff Engagement and Wellbeing Framework” was launched which includes valuable surveys and trainings. Court-wide there are moves to create a focal point for women and on equality related issues (similar focal points existed at the ICTY since 2003 and at the STL since 2017). Within the OTP, there is a Gender Awareness Committee and a new pilot Equality Committee project. The Staff Union has also launched a campaign to address awareness, trainings and improvements to the existing ICC sexual harassment policy which is 15 years old. In 2019, the Staff Union organised a series of active bystander trainings – to ensure staff act, no matter in what small way, when such behaviour is observed. Nonetheless, the success of future bystander trainings and other projects depend on continued will and dedicated follow through by the Principals, including the incoming Prosecutor.
Separately, a Group of Independent Experts appointed by the ASP is carrying out a review of the ICC pursuant to a resolution passed in December 2019. They will make recommendations to the ASP under three clusters of issues, with one covering Governance, Management & Leadership which among others addresses gender equality, recruitment and mobility, occupational health and wellbeing, ethics/standards of conduct and leadership. Establishment of a staff ombudsman [sic] is being considered as well.
In November 2019, the ICC, the IBA and ILO co-hosted an event on the legal framework to address bullying and harassment in international organisations, a commendable initiative to raise awareness about unethical conduct. But the Court missed the mark in their press release on the event which would have benefited with some self-reflection – neither the Deputy Prosecutor nor the ICC First Vice-President acknowledge that the Court has a problem. Rather, their approach seems to be to state that there is a strict prohibition on harassment, and that the Court’s framework on bullying and harassment can address such behaviour. Leading with integrity means being forthright about the underlying problem, by naming the type and prevalence of misconduct, and then laying out how to tackle it, instead of simply explaining the Court’s framework.
The Committee on the Election of the ICC Prosecutor and States Parties must ensure that a person with a razor-sharp moral compass is elected, who can follow-through on and coordinate the multiple overlapping initiatives underway to tackle misconduct.