Introduction
Paragraph 23 of the due diligence procedure adopted by the Assembly of States Parties in 2023 requires the Independent Oversight Mechanism (IOM) to report on judicial candidates high moral character for elected office. Yet, for the election of six judges in New York this December, vetting did not take place in a timely manner. The direct consequence is set out in the report of the Advisory Committee on Nominations of Judges who received only a preliminary IOM report. The Committee concluded it ‘could not make a conclusive determination regarding the criterion of “high moral character”‘ for any of the fourteen candidates’ (para 19). The case for putting the final IOM report before States Parties ahead of the vote has already been made on this blog. This post asks a prior question: how a procedure designed to be integrated into judicial selection came to run behind it, and who in the governance architecture owns that outcome. These are questions that gain special relevance after the procedural innovations in the name of high moral character resulting in the removal of the ICC Prosecutor. They are, equally, critical to invest and strengthen in a culture of accountability within the institution. In sum, it is for the Assembly of States Parties President and the Bureau to propose to the Assembly ways to fix the procedural flaws affecting vetting this time around.
Electing Judges of High Moral Character
Article 36(3)(a) of the Rome Statute requires that judges be chosen ‘from among persons of high moral character, impartiality and integrity’. Article 36(4)(a) imposes each nominating State Party to specify how its candidate fulfils that requirement, and Article 36(6)(a) leaves the election choice to a two-thirds majority of States present and voting. The condition is thus addressed to States twice: as nominators who vouch, and as electors who choose. The Statute also makes it abundantly clear judges should be of high competence. This requirement has been reaffirmed in the practice of the Assembly. However, the Statute prescribes no method of verification but it considers the establishment of an Advisory Committee on Nominations of Judges (ACN) that over the years has developed its practice into assessing if candidates proposed by States Parties are in line with Article 36 requirements. The ACN was established by in 2011 with independent members serving in a personal capacity assessing candidates ‘strictly on the requirements of article 36, paragraphs (3)(a), (b) and (c)’. Moral character has always been within its remit, albeit with different means to assess it. The 2019 amendments added a questionnaire on the candidate’s ‘track record of impartiality and integrity’, reference checks, including criminal records and a signed declaration on known allegations. Building on these expanded powers, a partial vetting exercise took place in 2020. In this instance, the Court’s Security and Safety Section led the process, however without providing details of its detailed practice. Already in 2020, not all requested criminal records arrived by the reporting deadline. Timelines and deadlines are an important consideration given the Committee’s report must reach States ‘at least 16 weeks before the elections’.
From Partial to a Full Flawed Vetting Mechanism?
The 2020 prosecutorial election produced the first approximation of vetting, including background checks on fourteen candidates. The exercise was led once again by the Court’s Security and Safety Section with the lessons-learnt report commissioned after the prosecutorial election calling for a clear process to determine high moral character for the next judicial election. Still not identifying the IOM as the vehicle for vetting, several ad hoc procedures followed in the 2021 and 2022 elections. It was only in 2023 at the election of six new judges when the Bureau adopted a temporary procedure that ran in parallel to the ACN: an IOM confidential channel open until 30 June, with any concerns to be reported to the Assembly President by 31 October. The vetting did not feed into the Committee’s interviews and its final assessment sent to all States Parties, leaving any potential conflict to be managed by the ASP President, a political actor.
Largely thanks to strategic advocacy by civil society, the ASP finally agreed to establish a permanent and more robust vetting process in 2023, now led by the IOM. In sum, the amendments integrated vetting into selection: the IOM ‘shall conduct an in-depth background check of criminal, academic and employment records of the candidates’ and ‘convey the relevant information…to the Chair of the Advisory Committee on Nominations of Judges’. However, the vetting process contained a fatal design clause whereas the ACN timeline to produce its report is not compulsorily linked with the IOM’s timeline to vet all candidates. Paragraph 23 notes the IOM shall submit its report to the ASP President and ACN chair ‘within the time period to be established for each election process’. For 2026 judicial elections, the deadline for receiving any misconduct allegation was June 30 with the ACN regular meeting, producing its report, scheduled for mid-July. The time period for the election was designed from its inception to make vetting by the time the ACN met impossible.
The nomination period, opened on 5 January, was extended three times, the last time on 28 April. The confidential channel, which was required to stay open for at least 60 days and with equal treatment of candidates, closed on 30 June. The IOM’s preliminary report followed only on 11 July as the Committee sat from 13 to 24 July with its report issued on 5 August to meet the 16-week rule imposed by its mandate to transmit their assessment to all States Parties. Assessing credibility and putting any allegations to candidates cannot be done in 11 days. Each extension of the nomination period moved the start of the sequence while its end remained fixed, so that the vetting window absorbed the entire delay. While Dr. Bury maintains the final report had reached the Assembly President by the end of July, it has not been published and not taken into consideration for the high moral character assessment by the ACN. Further, while the permanent vetting system did anticipate possible incompleteness, this scenario was envisioned to apply to specific and few cases unlike the current situation where vetting is incomplete for all candidates. The Committee was unable to fulfil its mandate in full and as such it asked the Assembly to review this matter by ‘establishing timelines for the preparation and transmission of due diligence reports by the IOM’.
It is difficult to understand how the IOM was supposed to be in an operational position to review the results of its due diligence process, apply its heavy framework and produce a report for the ACN in a timely way. The IOM own operational capacity is critically depleted as six staff are overseeing about 25 cases per investigator against a benchmark of 8 to 12, with investigations lasting 18 to 24 months and inspections dormant since 2018. States Parties knew adding permanent vetting to an already overburdened subsidiary body was unrealistic without appropriate resources, which for 2027 will include a one-off €50,000 top-up in consultancy fees for vetting Registrar candidates. This is not a lasting solution. In fact, the design flaw was fully known to the Assembly of States Parties, including its President that operationally manages the IOM. In 2025, the Bureau-led facilitation report on improvements to the nomination and election process, including vetting, clearly identified the structural issue asking for ‘possible amendments to other mandates and procedures which may be necessary in order to implement the due diligence procedure for elected officials’. Neither the Assembly, its President, nor the Bureau took action. The failure by States Parties to take high moral character seriously in judicial elections contrasts sharply with their involvement in the disciplinary process removing the Prosecutor, where preserving high moral character in the OTP, rightfully, was offered as an explanation for the unprecedented vote.
Conclusion: Fixing the Architecture is a Governance Choice
Nothing in the 2026 sequence required bad faith. It came from ordinary governance choices: a timetable delegated and never set, extensions granted without regard to what came after them, and lack of resources to the IOM to pursue its additional responsibilities. The Assembly is the Court’s governance body, and high moral character is a condition it imposes on itself, mandated by the Rome Statute. A procedure without a calendar will fail again in 2027 for the Registrar, and in the prosecutorial election that follows, unless States Parties treat the blank in paragraph 23 as their own omission to correct. Some policy options to make vetting bite would include establishing a default calendar calculated backwards from the moment the ACN report is due while making sure any extension of the nomination period should move that calendar as a whole or place late nominations on a separate vetting track, rather than shortening the IOM’s window. Also, where a final report arrives after the Committee own take, the Committee should be required to issue an addendum on Article 36(3)(a) before the election with its complete assessment. Finally, obviously, the IOM needs a recurring, budgeted vetting capacity, and its lessons-learned report should be public in order to engage expertise beyond the Court, including best practice at domestic and even corporate levels. These are minimal steps for States Parties to make high moral character the legally required mandate for all working for the Court, including State Party representatives.