Judges say ICC prosecutor in sexual misconduct inquiry can potentially resume work, documents show | L. Ashley Waye

𝗧𝗵𝗲 𝗕𝘂𝗿𝗲𝗮𝘂 𝘄𝗮𝘀 𝗿𝗶𝗴𝗵𝘁 𝘁𝗼 𝗲𝘅𝘁𝗲𝗻𝗱 𝗺𝗶𝘀𝗰𝗼𝗻𝗱𝘂𝗰𝘁 𝗽𝗿𝗼𝗰𝗲𝗲𝗱𝗶𝗻𝗴𝘀 Selective media leaks last week indicated that the panel of judicial experts reached conclusions with clarity and certainty. Further reporting suggests otherwise. The panel’s mandate was limited to legal characterisation, not fact-finding. The OIOS investigation was conducted under an administrative standard, not the beyond reasonable doubt standard. The panel was not a tribunal or investigative body. No fact-finding stage at the higher standard was built into the process. In these circumstances, it is no surprise that the OIOS findings could not meet the higher standard. The panel itself stated: “The resolution of a number of disputes, which remains outstanding, would be necessary before a proper characterisation of the facts can be made.” A legal characterisation in these circumstances cannot be treated as conclusive. Crucially, the panel was authorised to seek clarification from OIOS on factual matters. Reporting suggests that it did not revert to investigators. At the same time, ICC staff have raised serious concerns regarding trust in the Prosecutor’s leadership. These include fears of retaliation as well as concerns that the working environment improved in his absence and would deteriorate upon his return to a "culture of fear". These considerations go directly to whether the Prosecutor meets the statutory requirement of high moral character and is able to carry out his functions. Many have suggested that the panel characterisation should be accepted on the basis that “principle should not outweigh process”. While there are strong reasons to question this process in the name of principle, a process so structurally limited cannot credibly be treated as determinative. The Bureau could not have been expected to ignore OIOS findings of “evidence showing a factual basis” for the complainant’s claim that the Prosecutor’s behaviour escalated over time, including non-consensual sexual contact “in his office, at his private residence, and whilst on mission”. The Bureau was always going to be the ultimate decision-maker, with the authority to hear from affected parties. It should now hear from the Prosecutor, the alleged victims, and seek clarifications from OIOS. Making a determination on an issue of this gravity, especially in light of the requirement of high moral character, should not rest on “a number of unresolved disputes”. Continuing the proceedings in order to address those gaps is both necessary and appropriate. The Bureau should not be guided by commentary shaped by selective or one-sided reporting. Its task now is to clarify factual disputes and reach a determination - on allegations of sexual harassment and retaliation - grounded in both process and principle. These are not mutually exclusive. Three alleged victims, ICC staff, and the Court’s credibility depend on the Bureau upholding both. https://shorturl.at/f7U0T