With regard to the requirement of article 36(3)(a) of the Rome Statute concerning the high moral character of the candidate, the Committee considered the information provided through curriculum vitae, statement of qualifications, questionnaire, the signed declaration and the interview. The Committee also considered the preliminary report of the IOM on the due diligence procedure for candidates for judges of the International Criminal Court. The Committee noted that the review of the IOM was ongoing at the end of the Committee’s session and could not make a conclusive determination thereon. The examination of the Committee through the interview, based on the information available at the time, did not put into question the high moral character of the candidate. (emphasis added)
When I first read this language in paragraph 5 of the Report of the Advisory Committee on Nominations of Judges on the work of its eleventh session, ICC-ASP/25/8 (Report) on the assessment of each of the 14 judicial candidates (one deemed unqualified) vying for six ICC judgeships, I was more than a little dumbfounded. As a chronicler of the ICC and its sometimes-curious ways, I have learned to expect the unexpected. Even so, this one stopped me in my tracks.
Really?
Have we learned nothing?
I ask because I noticed the problem as soon as the Report was released. I did not write about it then – not because I had missed it, and certainly not because I found the language unremarkable. Quite the opposite: I immediately wondered, as perhaps any reasonably objective person (learned or not) would, how the Committee could meaningfully assess a candidate’s “high moral character” when, by its own account, its investigation and consideration of reported allegations of misconduct were still incomplete.
Still, I hesitated to chime in.
Part of the reason was timing. I had just published two comprehensive pieces (here and here) on the ICC’s selection and election processes, in which I had argued that character cannot be treated as an afterthought to professional competence. I had written at length about how candidates for the ICC’s most consequential offices should be scrutinized, not merely admired on paper. I had also recently written about the Prosecutor-selection process and what I regarded as its institutional shortcomings.
So, I wondered whether I really wanted to jump back into the fray and write yet another piece about another ICC (s)election process. I wondered whether it might make me look like the institutional gadfly who is forever standing at the edge of the village, waving another warning flag while everyone else carries on with the parade. A false Cassandra, if you will. For those unfamiliar with the reference, Cassandra was condemned in Greek mythology to tell the truth yet never be believed. The last thing I wanted was to acquire a reputation for predicting institutional calamity simply because I had become too fond of the sound of my own warnings.
There was another reason for my hesitation. Having written as critically as I did about L’Affaire Khan (see e.g., here, here, here, here, here and here), I did not particularly relish adding another chapter to what some might regard as my personal running commentary on the ICC’s failings. My criticisms of that episode were not motivated by hostility toward the Court or any individual. They arose because I thought the way the matter was handled raised serious questions about fair process, the information conveyed, gamesmanship, institutional credibility, and the ICC’s welfare.
I could have stayed on the sidelines as a passive observer, but I chose not to. I have never thought silence is necessarily the better option when an institutional process raises serious questions of fairness. Others may not have had the luxury of speaking out for personal or professional reasons, or may simply have had no reason to weigh in. It is not for me to judge.
And yet I still held back. I had seen the issue, thought about writing about it, and then decided, for the moment, to let someone else reach into the hole to grab the snake.
Then Carina Bury wrote about it.
Her excellent observations in EJIL: Talk! raises many of the same concerns that troubled me when I first read the Report, particularly the consequences of serious misconduct allegations not being adequately resolved before States Parties are asked to vote. Her point is not that allegations should be treated as findings or that candidates should be condemned without a fair process. Rather, it is the more fundamental question of what a screening process can meaningfully say about character when the very process intended to inform that assessment has not yet finished its work.
Having now seen someone else has identify many of the same concerns that troubled me when I first read the Report, I would be remiss not to chime in.
So here I am.
But let me be clear about what I am and am not saying. I have no personal knowledge of allegations against any particular candidate. I neither believe nor disbelieve them, and I do not know which, if any, have merit. I know only what has been reported publicly and what, as inevitably happens in these matters, has begun circulating through the grapevine and rumor mill.
Rumors are no more evidence than allegations are findings. The absence of findings is not proof that nothing happened, especially when the vetting remains incomplete. That distinction is central to what I am writing about. My concern is with the process, not with making a finding about any person.
According to the Report, on July 11, 2026, the Committee received a preliminary report from the Independent Oversight Mechanism (IOM) on the 14 candidates nominated for election as judges in December 2026. The Committee considered the IOM report an important contribution to its interview process. However, the Committee did not receive the final IOM report by the end of its session.
Having acknowledged that it could not make a conclusive determination regarding the criterion of “high moral character” required by article 36(3)(a) of the Rome Statute, and, more significantly, that it could not fully take the IOM report into account during the interview process because the review of allegations of misconduct remained ongoing, questions abound.
That is not a footnote. It goes to the heart of the exercise and raises a fairly obvious question:
Will the Committee pause its consideration and recommendation until thorough investigations into all serious or reasonably serious allegations of misconduct, including workplace bullying, degrading treatment, sexual harassment, or other conduct bearing on the statutory requirement of high moral character, have been completed?
The Rome Statute does not merely require ICC judges to possess the necessary professional qualifications. It also requires them to be people of high moral character, known for impartiality and integrity. This requirement of high moral character cannot be reduced to academic credentials, professional accomplishments, or judicial experience.
Simply put, the bar is very high; professional competence, colleagues’ regard, academic achievements, or sustained lobbying by State Parties do not guarantee meeting it. A judicial appointment is not a beauty pageant or a matter of who has the most connections.
Alas, some degree of political horse-trading may be inevitable in any election. But surely it should not precede the basic task of determining who, precisely, is being put forward for the job, as if buying a piglet in a sack and discovering later what you actually bought.
“High moral character” is therefore not ornamental language inserted into the Statute because legislators have a fondness for lofty expressions; it is a qualification for judicial office. If it is a qualification, it must have meaning.
This is where Bury’s article strikes the right chord. Her concern is not that an allegation be treated as established fact. Nor is it that a candidate be condemned without a fair process. The concern is more fundamental: what can a screening process meaningfully say about a candidate’s character when the very investigation meant to inform that assessment remains incomplete?
I agree.
Indeed, I would go a step further.
If serious allegations have been made against a candidate and the vetting of those allegations remains incomplete, I do not see how the Committee can responsibly assure States Parties that it has all the information needed to assess whether the candidate meets the statutory requirement of high moral character. That does not mean the candidate is guilty. It does not mean the allegations are true. It means the question remains unanswered. That is precisely why the investigation matters.
A vetting process is, effectively, an investigation. It should begin with an open mind, not with an answer that investigators then work backward to justify. The formula for IOM investigators, or any investigators committed to diligence and to finding the truth, is marvelously simple:
Investigate
→ Test the information
→ Follow the leads
→ Speak to the witnesses
→ Give the candidate an opportunity to respond
→ Distinguish what is known from what is inferred
→ Remain alert to confirmation bias
→ Be prepared to change the assessment when the evidence requires it
That is what due diligence looks like when done properly. Importantly, the ICC does not leave the meaning of “due diligence” entirely to our imagination. The Assembly of States Parties (ASP) has already adopted a due diligence procedure for candidates for elected office, including judges.
Under Annex II to Resolution ICC-ASP/22/Res.3, the due diligence procedure applies to candidates for judges, as well as to the Prosecutor, Deputy Prosecutor, Registrar, and Deputy Registrar. The responsibility for conducting it rests with the Independent Oversight Mechanism, with assistance from the Registry and the Secretariat of the ASP, as appropriate.
And the procedure is not merely a box marked “check.”
The ASP expressly defines “misconduct” to include human rights violations; workplace or work-related harassment, including sexual harassment; abuse of authority; discrimination; bullying; and other serious ethical or legal breaches, such as fraud or corruption.
When an allegation relates to misconduct, the procedure requires the IOM to review its credibility, obtain additional information and details from the complainant, interview the complainant where appropriate, and corroborate the information to the extent possible. It must also assess the materiality and seriousness of the alleged misconduct. If an allegation is found credible and material, it must be put to the candidate, who must be given a full and fair opportunity to respond.
In other words, the ASP has already answered much of the question about what due diligence is supposed to look like. It involves more than receiving an allegation, recording it, and moving on. It also involves testing information, following leads, speaking with people who may have relevant knowledge, assessing credibility and materiality, and giving the candidate an opportunity to respond.
Most importantly for present purposes, paragraph 23 provides that, at the conclusion of the review process, the IOM is to report concerns it considers could affect the assessment of a candidate’s high moral character and, in particular, to assess whether, “on the basis of all the information before it,” there is sufficient credible and material evidence to “raise concerns about that character.”
That wording matters. “Raise concerns” is not a finding of guilt. Nor does it purport to be an administrative determination, let alone a criminal conviction. The IOM is not being asked to determine whether misconduct has been proved to the standard applicable in disciplinary or criminal proceedings. There is no finding of guilt to enter, no sanction to impose, and no punishment to administer. The purpose of the exercise is more modest but no less important: to determine whether the information before the IOM is sufficiently credible and material to raise a legitimate concern about whether the candidate meets the statutory requirement of high moral character.
That distinction should not be overlooked. Seasoned international criminal lawyers and judges are accustomed to testing allegations against demanding evidentiary standards. There may therefore be a natural tendency to treat an allegation of serious misconduct as requiring proof to the highest standard before it is taken into account. But this is a vetting exercise, not a criminal trial. The question is not whether the allegation has been proved beyond a reasonable doubt, or even whether the IOM should make a final adjudicative finding against the candidate. The question is whether the information, once investigated and tested, is sufficiently credible and material to warrant raising a red flag about the candidate’s character.
That is precisely why the quality of the investigation capable of producing a finding, matters. A threshold designed to “raise concerns” cannot sensibly be applied to information that has not first been adequately tested. The IOM must therefore do more than receive an allegation, note that it remains unsubstantiated, and move on. It must review and test the information, follow reasonable leads, speak with relevant witnesses, give the candidate a fair opportunity to respond, and distinguish what is known from what is inferred. Only then can it meaningfully assess whether the information before it is sufficient to raise the concern that paragraph 23 requires it to consider.
If the assessment is to be made on the basis of “all the information before it,” the obvious question is how comprehensive the underlying inquiry must be before the IOM can responsibly say it has reached the end of the road. How many leads must be followed? How many relevant witnesses must be contacted? What information must be corroborated? What explanations must be tested? And, perhaps most importantly in the present circumstances, what remains to be done when the Committee itself acknowledges that the review of allegations of misconduct is still ongoing?
I do not suggest that the IOM is required to investigate every rumor whispered in a corridor or every allegation that arrives without supporting information. The procedure itself distinguishes among allegations, credibility, and materiality. But where an allegation is sufficiently serious and sufficiently connected to the statutory requirement of high moral character to warrant investigation, and the complainant is known and available for interviews, the procedure necessarily entails the expectation that the investigation will be conducted before the assessment is made.
And that brings us back to the timing problem.
The Committee acknowledged that it did not yet have the final IOM report and could not fully consider the IOM’s work because reviews of misconduct allegations were still ongoing. Since then, the IOM review appears to have been completed, and the final IOM report was reportedly transmitted at the end of July, after the Committee had finished its work. This timing creates a gap between the investigation and the assessment it was intended to inform. Although the investigation may now be complete, its findings came too late to inform the Committee’s assessment on which the Report was based.
That, however, does not make the completed IOM work irrelevant. On the contrary, it provides the election process with information that was either unavailable or not yet final when the Committee reached its conclusions. If that information bears on the statutory requirement of high moral character, it cannot reasonably be dismissed as yesterday’s news merely because the Committee had already closed its proceedings.
The question, I dare say, is not whether the process permits the completed work to be brought into the election process before the States Parties make their decision. It does. The question is whether those entrusted with the process will allow it to function as intended, in both letter and spirit. If that means some inconvenience – reconvening, reconsidering an assessment, or simply taking account of information that became available after the Committee concluded its work – so be it.
Due diligence is not intended to stop being due diligence when the clock becomes inconvenient. And whatever additional effort may be required of the Committee, there is surely no procedural reason why the States Parties themselves should not have the completed IOM report before them when they cast their votes.
There is still time before the election, and that matters. But completing the investigation is not the end of due diligence; it is the point at which due diligence must begin to inform the decision for which it was undertaken. A report that is completed, transmitted, and then effectively set aside because it arrived after the Committee had finished its work would satisfy the calendar, perhaps, but not the purpose of the exercise. Due diligence is not merely a report to be filed. It is information meant to inform a judgment before that judgment is made.
One point worth pondering: a bit of sunshine as a disinfectant for procedural integrity. I am not suggesting that the IOM must publicly disclose the details of confidential investigations. Due diligence involving allegations of misconduct will, quite properly, involve confidentiality considerations. But confidentiality is not the same as opacity.
Given how this vetting process is unfolding under the circumstances, there should at least be sufficient institutional assurance that the procedure prescribed by the ASP was followed and that the assessment ultimately be provided to those responsible for the election rests on an investigation sufficiently complete to support the conclusions drawn from it. Otherwise, paragraph 23’s reference to “all the information before it” risks being a meaningless formulation: not because the IOM has ignored information, but because the information available to it was never fully developed.
That is why the distinction between an allegation and a finding cuts both ways. An allegation must not be treated as a finding. But neither should an allegation be treated as effectively disposed of merely because the process never progressed far enough to determine whether it had substance.
As I wrote in my earlier pieces on the selection process, an investigator must test information rather than simply accept it, distinguish what is known from what is inferred, remain alert to confirmation bias, and be prepared to revise an assessment when further evidence warrants it. The point is not to prove a proposition already adopted. It is to determine what happened, to the extent the evidence permits.
States Parties are entitled to know what they are being asked to vote on. This is not simply a matter of geographical representation, professional qualifications, academic credentials, judicial experience, or who looks best on paper. Those things matter. Of course they do. But the Rome Statute sets a different standard.
A candidate for judicial office must be of high moral character. If serious allegations bearing directly on that requirement have been raised, they must be examined. Otherwise, the words “high moral character” risk becoming little more than another box to be ticked on an otherwise impressive application.
There is another reason this matters.
A screening process serves not only the candidates, but also sends a message to those who may have information relevant to the process. If people are invited, expressly or implicitly, to come forward with concerns about candidates but discover that serious allegations are largely unexamined, what incentive is there for the next person to speak up?
That is where the issue goes beyond any particular candidate.
Someone who believes they have been mistreated, bullied, harassed, abused, or otherwise wronged at work or elsewhere, may already find it difficult to come forward. If the process offers no assurance that a complaint will be investigated fairly and competently, staying silent may seem safer. That could discourage the very people a credible screening process should encourage to speak.
By contrast, the candidates enter the process with their eyes open. They know they are being screened and that their professional histories, qualifications, judgment, integrity, and character matter in determining whether they should be entrusted with judicial office. That is part of the bargain.
The alleged victim, complainant, colleague, subordinate, or other person bringing information into the process does not necessarily have the same level of security. Such a person may have little to gain and much to lose by coming forward. That is why the integrity of the investigative process matters, regardless of the eventual outcome.
A fair process prevents an untested allegation from becoming a finding by implication. It also protects the complainant from a serious allegation simply disappearing into the institutional ether. And it gives the States Parties what they need: sufficiently tested information to make an informed decision.
Anything less risks doing a disservice to all three—and, ultimately, to the ICC.
There will, of course, be those who say that perhaps a candidate has changed. People change. Youthful indiscretions can remain just that; mistakes can be acknowledged, corrected, and left behind. But deciding whether something is immaterial, remote, explained, disproved, or genuinely relevant to the statutory standard is precisely the kind of judgment that cannot responsibly be made without first establishing what actually happened.
While professional excellence, popularity, reputation, seniority, or the passage of time may all be relevant. None is a substitute for examining the allegation itself.
I am not predicting a scandal. I am not suggesting that any candidate has done anything wrong. I am not saying that an allegation is true simply because it has been reported, nor that it is false because it has not been substantiated.
I am saying something considerably less dramatic and, I hope, considerably more useful: if the ICC is serious about requiring its judges to possess high moral character, then serious questions about that requirement need thorough investigation before its member States are asked to vote.
The Committee may now have the results of those investigations. If so, the sensible course is to ensure that they are actually brought to bear on the election before the votes are cast. If the Committee cannot address the concerns identified in the IOM report due to lack of time, the IOM report should at least be made available to the States before voting, subject of course to whatever confidentiality safeguards the procedure requires. That would serve the core objective of informing States about the candidates, rather than pretending such information never existed.
The ICC has endured enough institutional turbulence without needlessly creating another problem for itself by proceeding with incomplete information, especially when that information concerns the very quality – high moral character – the Rome Statute requires of its judges. The point isn’t to throw caution to the wind or treat every allegation as fact. Quite the opposite: allegations aren’t findings, so they must be properly investigated before anyone claims to know what they mean.
Because “high moral character” is not merely an aspiration but a statutory qualification, the States Parties should not be asked to make that judgment with one hand tied behind their backs. It should not matter how highly qualified a candidate appears.
Neither the Committee nor the States Parties should countenance excusing, minimizing, or ignoring allegations that directly or indirectly affect a proper evaluation of whether a candidate meets the high moral character standard. A claim of insufficient human, financial, or time resources should not be an acceptable reason for failing to conduct the requisite due diligence. No one deserves, nor should anyone be given, a pass or, to put it bluntly, plausible deniability, simply because serious allegations were never seriously investigated.
The Committee entrusted with making the assessment, and the States Parties ultimately responsible for casting their votes, should insist on nothing less: no candidate – however qualified, however liked, however distinguished, or however seemingly removed from the conduct alleged – should be allowed to have serious allegations bearing on the statutory standard simply drift into the institutional ether without being properly investigated.
This is not demanding perfection; it is asking for due diligence. It is not asking the Committee to find against a candidate; it is asking the Committee to find out.
There is a broader institutional point here as well. The ICC asks the world to take accountability, independence, integrity, and the rule of law seriously. It should demand no less of itself. A judicial institution that asks others to account for their conduct cannot reasonably treat its own standards of accountability as optional.
Which brings me, finally, to the title.
Yogi Berra, one of America’s greatest and most colorful baseball players, managers, and coaches, was almost as famous for his memorable sayings as for his baseball career. He supposedly said, “It’s déjà vu all over again.” The expression is funny because déjà vu already means the sense that something has happened before. Saying it is happening “all over again” is therefore wonderfully redundant – and wonderfully apt.
And perhaps that is why the phrase keeps coming to mind here. Déjà vu is the feeling that we have been here before. “Déjà vu all over again” adds the uncomfortable possibility that, having been here before, we are nevertheless walking back into the same room.
Could that be what we are seeing here?
I certainly hope not.
But déjà vu has a way of becoming more than a joke when an institution has experienced the consequences of inadequate scrutiny and then seems willing to take the same risk again.
No one should have to predict what will happen. No one should have to believe or disbelieve an allegation circulating through the grapevine. The sensible course is considerably less exciting: investigate it, test it, establish what can be established, reject what cannot, and give both the candidate and those raising the allegations a fair hearing.
If the allegations ultimately prove unfounded, so be it. That is what a proper investigation is for. If they prove to have substance, the States Parties should know before they vote. What would be difficult to explain is proceeding without knowing.
The ICC has an opportunity to avoid that.
It need do nothing extraordinary. It need only insist that the process do what it was designed to do before the votes are cast.
It should take it.
Otherwise, some years from now, someone may look back at this moment and ask the rather uncomfortable question: Didn’t we see this coming?
And that would be déjà vu all over again.
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