Representation as Gender Justice: Gender in the ICC’s Prosecutorial Election – Natalie Hodgson

This piece examines recent developments in the election of the International Criminal Court’s third Prosecutor with a focus on gender issues, in particular, the underrepresentation of female candidates and the vetting of candidates to ensure that they do not have a history of sexual harassment.

At the 2020 Assembly of States Parties meeting, States will elect the third Prosecutor of the International Criminal Court (ICC). At a time when the ICC is faced with increasing challenges, including hostile attacks from States, investigations into politically sensitive situations and limited financial and personnel resources to carry out its mandate, the decision on who will best serve the Court as Prosecutor for the next nine years is particularly significant. 

The election has been far from uneventful. After establishing a Committee on the Election of the Prosecutor (CEP) to receive applications, interview candidates and produce a shortlist for States to consider, there has been frustration with that shortlist, with Kenya arguing that the list is skewed in favour of a particular candidate. The deadline for the nomination period has been extended twice, with the most recent indication being that States are unable to reach a consensus on the shortlisted candidates and are considering introducing other candidates, possibly from the CEP’s longlist. 

Among these developments, gender issues have also featured significantly. This piece discusses two such issues and provides some suggestions for how they can be addressed in the short and long term – first, the underrepresentation of women among candidates nominating for the position of Prosecutor, and second, the vetting of candidates to ensure that they do not have a history of committing, condoning or ignoring sexual harassment. 

Female Candidates in the Prosecutorial Election

Following a trend observed in the last prosecutorial election, the current election saw women underrepresented among the candidates applying for the position of Prosecutor. On 22 October 2019, the Chair of the CEP wrote to the President of the Assembly of States Parties, recommending that the deadline for nominations be extended due to a gender imbalance among the candidates, as well as regional underrepresentation and an imbalance in the legal systems represented by the candidates. By the end of the nomination period, 144 applications had been received by the CEP, 44 from women (31% of candidates). Of these 144 applications, only 89 candidates submitted a complete application by the required deadline, including 26 women (29% of candidates). 

16 of the 89 candidates were longlisted for interviews with the CEP. Two candidates subsequently withdrew, leaving a longlist of 14 candidates. From this longlist, four candidates were shortlisted for consideration by States, including one woman (25% of shortlisted candidates). To date, the CEP has not provided a breakdown of the gender composition of the longlisted candidates; it would be interesting to see if women were underrepresented on the longlist and how that compared to their representation among the broader group of candidates. 

It is unsurprising that women are underrepresented among the candidates for the most senior prosecutorial position at the ICC. The ICC’s Independent Expert Review Final Report (IER), which was published in September 2020 as election processes were ongoing, noted that, while there was gender parity among employees in the Office of the Prosecutor (OTP), women were absent from senior management levels, a pattern replicated across the Court (at [138]). No doubt this absence is also prevalent in other legal arenas. Given that ‘leadership’, including a ‘proven and demonstrable track record of independence, impartiality and discretion as well as excellent management and technical, legal and leadership skills’, was listed among the experience required to apply for the position of Prosecutor, it is likely that structural barriers played some role in the underrepresentation of female candidates. To its credit, the CEP noted that all shortlisted candidates had areas where their experience was not as extensive as was desirable; as such, the Committee conducted competency-based interviews to allow candidates to demonstrate certain behaviours and skills.

As the process for selecting a consensus candidate continues, it is important to be aware of the unconscious bias that impacts how female candidates are perceived in job application processes. Online commentary has suggested that in the current environment, the next Prosecutor needs to be a ‘diplomat, politician, leader [and] manager’, ‘audacious’ rather than ‘modest’, and should resolutely hold the most powerful to account. Are these attributes more likely to be associated with male candidates? (That is not to say that women cannot embody these attributes, with Louise Arbour and Carla Del Ponte, among others, suggested as exemplars for the next Prosecutor.) A stark example of the differential standards applied to women came during the public hearings for prosecutorial candidates when the Assembly of States Parties Vice President suggested Justice Susan Okalany, the only short-listed woman, ‘give me a smile’ after she experienced numerous technical difficulties. This unfortunate statement serves as a reminder of expectations that women be agreeable and obliging – or, in the context of international crimes and mass atrocity, peaceful and passive. 

Moving forward, in the short term it is critically important that States are aware of the ways that unconscious bias can affect perceptions of female candidates as they deliberate on the selection of the third Prosecutor. No candidate should be judged on outdated stereotypes. Longer term, the CEP has indicated its willingness to draft a ‘lessons learned’ report for future elections and recommended that further efforts be undertaken by the Bureau of the Assembly of States Parties to encourage applications from women in the future. Both of these are desirable measures. Additionally, attention must also be given to facilitating the development of female candidates by creating opportunities for women to progress to management positions, particularly within the ICC and OTP.

Vetting Candidates for Sexual Harassment

There is significant evidence to suggest that sexual harassment is endemic, both within the OTP and the legal profession more broadly. The IER observed throughout the organs of the ICC, and particularly in the OTP, a workplace culture that was ‘implicitly discriminatory against women’, hearing ‘a number of accounts of sexual harassment, notably uninvited and unwanted sexual advances from more senior male staff to their female subordinates’ (at [209]). Such observations reflect the findings of the Us Too? Report by the International Bar Association (IBA), which found that 22% of the global legal professionals surveyed had experienced sexual harassment, with this figure higher among female respondents (37%) and non-binary individuals (43%). In addition to being a work health and safety issue, sexual harassment also impacts the composition of the workforce. As the IBA noted in its report, many individuals who experience sexual harassment leave their workplace, and 10% leave or consider leaving the profession entirely (at p 66). 

In February 2020, civil society organisations wrote an open letter to the CEP, calling for a vetting and interview process that would exclude candidates who commit, condone or ignore sexual harassment as part of the requirement that the Prosecutor be ‘of high moral character’ (Rome Statute, Article 42(3)). Following the receipt of the open letter, the CEP incorporated a vetting process into its assessment of candidates. While the CEP determined that it did not have the legal authority or capacity to carry out inquiries or investigations of candidates, the CEP requested the Security and Safety Section of the ICC carry out independent vetting of candidates, which included reference checks, checks of publicly sourced information (including social media) and criminal record checks. Three of the five CEP members indicated their willingness to receive credible information about potential candidates and to consider such information in the evaluation of candidates. Additionally, the CEP included questions about sexual harassment in their interviews. 

This process was not perfect. There was a lack of clarity around the confidentiality and protections provided to those making a complaint to the CEP, and it is unclear whether the CEP had the capacity to refer individuals for support after coming forward. The confidentiality surrounding who was on the longlist would have hindered individuals coming forward with complaints of sexual harassment. Furthermore, as acknowledged by the CEP, the vetting conducted by the Security and Safety Section was not comprehensive and could not identify all potentially problematic conduct. The CEP’s final report recommended improving vetting processes for future elections. 

In light of reports that the shortlist of candidates may be expanded to facilitate consensus among state parties, civil society have again reiterated the need to take reports of sexual harassment seriously. The Chair of the CEP indicated that the vetting procedure ‘gave an important dimension to the [CEP’s] discussions’, however, it remains unclear whether individuals on the longlist were excluded from the shortlist because of concerns about their moral character. If the shortlist is expanded, civil society have called for the CEP to release their reasons why certain individuals were not included on the shortlist and conduct further vetting of the relevant candidates. It is undoubtedly in the best interests of States to ensure that prosecutorial candidates are thoroughly vetted, if for no other reason than that any allegations levelled against the next Prosecutor would have the strong potential to undermine the credibility of an already fragile institution.

Conclusion – Representation as a Gender Justice Issue

The ICC has a significant gender justice mandate. One component of this mandate is representation, including greater representation of women as criminal justice officials. Such representation sends an important message about who is included and excluded in legal processes. Furthermore, the involvement of different perspectives in decision-making impacts the quality of justice provided to individuals. Greater gender representation among staff at the ICC is therefore connected with gender justice more broadly. 

There is no doubt that, at the conclusion of this election, significant attention will be given to identifying lessons for the future. This must include consideration of gender issues. In the longer term, vetting processes must be improved and consideration must be given to facilitating women’s career development and advancement. However, crucial issues remain in the short term – being aware of the impact unconscious bias can have in the selection process and scrutinising candidates to ensure they do not have a history of committing, condoning or ignoring sexual harassment. These are important and significant matters that go to the heart of the Court’s gender justice mandate. 

Natalie Hodgson is a Scientia PhD Candidate in the Faculty of Law, UNSW Sydney.