Original question:

"Under international law, what are the options and requirements for vetting electoral candidates in order to prevent from running individuals who have reportedly been involved in (but not yet convicted of) serious crimes?"

This question was raised by the International Center for Transitional Justice (ICTJ). It stems from Afghanistan and the process of vetting candidates who have been allegedly involved in serious crimes, but not yet indicted nor convicted; however, the question remains global.

Summary of Responses:

The main relevant principle in this case, highlighted by most members, is that one should be treated as innocent until proven guilty, and references to the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights are made throughout the replies to this question. As stated by Maarten Halff, legislation allowing deviations from these standards would expose an electoral process to a high risk of manipulation. Peter Eicher also specifically mentions that the Organization for Security and Co-operation in Europe (OSCE) has criticized the disqualification of persons not yet convicted of a crime as contrary to international standards; and Victoria Stewart-Jolley argues that even though all states are not signatories to some of the specific international law instruments, the principles now hold the status of customary international law and as such are binding on all states. Fredrik Blanck highlights item 14 in the General Comment 25 to the International Covenant on Civil and Political Rights (ICCPR) which states that “persons who are deprived of liberty but who have not been convicted should not be excluded from exercising the right to vote” and argues for the right to vote and the right to run for office to coincide.

Carl Dundas refers to a case in Liberia where candidates had been excluded from running in 2005 because they were under sanctions by the UN, but where the EMB pointed out that under the Liberian Constitution, Liberians under UN sanctions were not barred from running in the election. Also, Peter Williams highlights that for an election in Afghanistan the lack of official records of convictions led to a situation where even convicted criminals were allowed to run on the basis that no evidence of conviction was found.

One alternative to legal vetting of candidates is brought forward by Debashis Sen who quotes the Indian case of candidates having to declare in the form of affidavits their criminal antecedents; leaving it up to voters to make an informed choice.

Nevertheless, it is also important to take into consideration examples of where a post-conflict situation has called for transitional justice mechanisms to take precedence over the right to be elected, such as Afghanistan 2005, as described below by Maarten Halff and Fredrik Blanck. Also, Michael Meyer-Resende writes about how the question raises a similar concern; namely whether political parties which are associated with violence can be barred from participating in the elections. Finally, Julian Type states that another related and important question is ensuring that elected representatives should enjoy no immunity from prosecution during their terms of office and should risk losing their seats upon conviction.

Replies were received, with thanks, from:

• Carl Dundas
• Peter Williams
• Peter Eicher
  
• Victoria Stewart-Jolley
• Maarten Halff 
• Koki Muli
• Fredrik Blanck
• Michael Meyer-Resende
• Julian Type
  
• Debashis Sen
  

Links to related resources:

• OSCE Election Support Team to Afghanistan Recommendations on 2005 Parliamentary Elections
• UNDP operational guidelines: Vetting Public Employees in Post-conflict Settings
• International Crisis Group: Can Haiti Hold Elections in 2005
• International Crisis Group: War in Iraq: Political Challenges After the Conflict
• Human Rights News: Liberia: Despite Elections, Collapse of Justice Poses Risks
• Amnesty International: Liberia - Violence, discrimination and impunity
• Afghanistan Watch: Warlords in Parliament: How it Happened
• Office of the United Nations High Commissioner for Human Rights: Rule-of-Law Tools for Post Conflict States. Vetting: An Operational Framework
• Election Law of Bosnia-Herzegovina
• Resolution 48/131 "Enhancing the effectiveness of the principle of periodic and genuine elections" adopted by the United Nations General Assembly
• Resolution 43/157 "Enhancing the effectiveness of the principle of periodic and genuine elections" adopted by the United Nations General Assembly
• Rome Statute of the International Criminal Court
  
• International Criminal Tribunal for the Former Yugoslavia
• The Organization for Security and Co-operation in Europe
• Inter-Parliamentary Union Declaration on Criteria for Free and Fair Elections
• International Covenant on Civil and Political Rights
• Human Rights Committee, General Comment 25 on the International Covenant on Civil and Political Rights

Individual answers:

International Law is silent on this matter which falls to be dealt with by the national electoral law. There was the case in Liberia when some advocated disallowing certain persons in Liberia contesting the national elections as candidates in 2005 because they were under sanctions by the UN, but the EMB rightly pointed out that under the Liberian Constitution Liberians under UN sanctions were not barred from standing in national elections. Now not all the persons who were under sanctions might have been guilty of serious crimes, but the principle is that a person should only by disqualified from contesting national elections in his/her country, if he/she was convicted of a serious crime and is barred under the national law from contesting elections.

Of course, the common law principle 'that a person is innocent until found guilty' is relevant here.

I have to agree with Carl. The over-riding premise is that one is innocent until proven guilty. This was the policy and guidelines of the Electoral Complaints Commission (ECC) in Afghanistan. Another concern in Afghanistan though was the lack of proof of convictions held by the judiciary. That is; the Court records and archives could not produce evidence of conviction to support the complaints against some candidates.  From memory, only one record was discovered despite many requests.

So how does one deal with candidates against whom people are prepared to provide written complaints alleging convictions which are not supported by the judicial record system?

In Afghanistan, such candidates where not disqualified on the basis that no evidence of conviction was found.

The presumption of innocence has to prevail in such cases under the Universal Declaration of Human Rights (UDHR) (article 11) and also under the International Covenant on Civil and Political Rights (ICCPR) (article 14.2) if a country is a party to the ICCPR.

As an election observer in some former Soviet republics, I've seen opposition candidates suddenly charged with questionable offenses to disqualify them from running. The Organization for Security and Co-operation in Europe (OSCE) has criticized such disqualification of persons who had not been convicted of a crime as contrary to international standards. 

I would concur with the opinions presented. International law presents human rights which directly conflict with any attempt to exclude potential candidates on the basis of unproven allegations.

The result of such a policy if adopted, would be to penalise an individual on suspicion of an offence, prior to the investigation, prosecution and judgement by a national court. This would directly challenge the rights and presumptions established under the Universal Declaration of Human Rights (UDHR), articles 14 and 25 of the International Covenant on Civil and Political Rights (ICCPR) and article 66 of the Rome Statute of the International Criminal Court. While the State in question may not be a signatory to specific international law instruments, international electoral standards are based on these principles. The UN in the implementation of electoral programmes are mandated to up hold the provisions in the human rights conventions, as per General Assembly Resolutions GA/Res/43/157 and GA/Res/48/131.

There is also a strong argument to suggest that these principles, through the adoption of numerous Conventions, Resolutions, and broad State practice now hold the status of customary international law and as such are binding on all States.

A candidate vetting system involves, as a possible consequence, the denial of someone’s right and opportunity to be elected. From an international law perspective therefore, the design of such a system should first and foremost be assessed against article 25 of the ICCPR (or similar provisions in other applicable instruments). As stated in the general comment adopted by the Human Rights Committee on this provision (CCPR/C/21/Rev.1/Add.7), restrictions on the rights contained in article 25 must be justifiable on objective and reasonable criteria, and must be established by law.

The principle of the presumption of innocence is clearly of relevance, although it relates to criminal procedure (as article 14, paragraph 2 of the ICCPR states) and not directly to the deprivation of a political right.

Also of importance are requirements of due process, enshrined in article 14, paragraphs 1 and 3 of the ICCPR, which offer a third type of standard against which to assess a vetting mechanism. This includes the requirement that a person be presented with the evidence on which charges are based, and be afforded a fair hearing before a competent tribunal.

As already stated by others, legislation allowing deviations from these standards would expose an electoral process to a high risk of manipulation. Nevertheless, a discussion of the issues arising from a vetting system should also take into account the important precedent of a provision of the electoral law of Afghanistan that allowed the exclusion, from that country’s 2005 parliamentary elections, of candidates who commanded or were members of illegal armed groups. The factual determination of whether a candidate had such links was not a matter for the national judiciary or electoral bodies, and was instead referred to a security committee. Its deliberations were not public. (The process is briefly discussed in the final report of the electoral complaints commission).

The mechanism as such enjoyed broad popular support as a way to keep those persons who were seen to have had a particularly pernicious role in the country’s civil conflict, out of the electoral process. This means that as a tool of transitional justice, it was given precedence over the need to offer broad protection to the right to be elected.

The legal and other considerations that were taken into account by national authorities in balancing the competing interests of ensuring an inclusive election and of protecting a fragile peace process, have not, however, been formally and publicly recorded.

There are yet no international options and requirements for vetting electoral candidates. However, International Instruments such as the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights (ICCPR) and the Declaration on Criteria for Free and Fair Elections, adopted by the Inter-Parliamentary Council at its 154th Session in Paris, March 26th 1994; provide general guidance on rights for every eligible candidate to participate in the electoral process. Individuals, institutions and interested parties can rely on these to make a case against national institutions relying on dubious reasons to exclude certain electoral candidates from participating in the electoral process.

The 'eligibility criteria' for candidates is left to national laws and Electoral Management Bodies (EMBs). Most countries provide in their laws or Constitutions who can qualify as an electoral candidate though the burden of proof of disqualification is on the one alleging it. For example, in Eastern Africa, electoral candidates are required to go through nominations by first their sponsoring political parties and then by the EMBs, each requiring certain qualifications from the candidates; these operate as some form of vetting. Some qualification criteria may not be found in the national law and may contravene International Law and Instruments, a recent example is the case of Iran where some candidates were disqualified for a variety of reasons including "ill reputations in their place of residence" while this was not defined and for other reasons connected to religion, etc.

In most countries in Africa, individuals who have pending criminal cases can actually participate in elections if they are out on bail. Suspects, even of serious crimes can also participate in elections as they are presumed innocent until convicted and sentenced to a jail term. Though, unless one is in jail at the time of elections, previous convictions do not bar one from being a candidate. One is disqualified for example in Kenya, from vying for an election if that person has been convicted of an election offence and barred by Court from participating in that subsequent election. However, people who have previously been convicted of election offences can participate as electoral candidates in subsequent elections. Furthermore, conviction of a previous criminal offence however serious does not automatically bar one from being an electoral candidate.

I can only recall restrictions of the right for a suspect to stand for office in the post conflict legislation in the former Yugoslavia where those indicted but not yet found guilty by the International Criminal Tribunal for the former Yugoslavia (ICTY) of war crimes who refuses to cooperate with the tribunal are unqualified to register to run. It’s probably too early to consider that position as an established international standard or best practice.

On the other hand international documents such as the General Comment 25 to The International Covenant on Civil and Political Rights (item 14), which is binding for the parties, specifically states that a person deprived of liberty but not convicted should not be refused to exercise the right to vote. The right to vote and the right to run often coincide and should preferably do so. In those instances where it’s recognised that convicts could be refused their right to vote one would though appreciate that the principles of rule of law would guarantee suspects even the right to stand. (In a previous election in Israel even a convict was elected.) However, such a candidate could not expect to automatically obtain freedom for campaigning or participation in the future proceedings of the political body s/he might be elected a member of.

I agree with all those who refer to articles 14 and 25 of the ICCPR (and respective general comments). 

The question whether political parties which are associated with violence can be barred is another matter to be assessed under freedom of association. 

Fredrik is right to point at former Yugoslavia, see below relevant articles from Bosnia-Hercegovina's election law. Even failure to appear before domestic courts can lead to disqualification for candidature; however it always requires that ICTY approved the Court's file. To my knowledge the UN Human Rights Committee has not expressed concerns about these provisions. I imagine Kosovo has similar legislation.

Excerpt from the election law of Bosnia-Hercegovina:

Article 1.6

No person who is serving a sentence imposed by the International Tribunal for the former Yugoslavia, and no person who is under indictment by the Tribunal and who has failed to comply with an order to appear before the Tribunal, may be recorded in the Central Voters Register or stand as a candidate (the candidate for the purpose of this Law refers to persons of both genders) or hold any appointive, elective or other public office in the territory of Bosnia and Herzegovina.

As long as any political party or coalition maintains such a person in a political party position or function as established in the previous paragraph, that party or coalition shall be deemed ineligible to participate in the elections.

Article 1.7

No person who is serving a sentence imposed by a Court of Bosnia and Herzegovina, a Court of the Republika Srpska or a Court of the Federation of Bosnia and Herzegovina and the Court of the District of Brcko or has failed to comply with an order to appear before a Court of Bosnia and Herzegovina, a Court of the Republika Srpska or a Court of the Federation of Bosnia and Herzegovina and the Court of the District of Brcko for serious violations of humanitarian law where the International Criminal Tribunal for the Former Yugoslavia has reviewed the file prior to arrest and found that it meets international legal standards may be recorded in the Central Voters Register or stand as a candidate or hold any appointive, elective or other public office in the territory of Bosnia and Herzegovina.

Article 1.7a

No person who is serving a sentence imposed by a court of a foreign country or has failed to comply with an order to appear before a court of a foreign country for serious violations of humanitarian law where the International Criminal Tribunal for the Former Yugoslavia has reviewed his or her case file prior to arrest and found that it meets international legal standards, may be recorded in the Central Voters Register or stand as a candidate or hold any appointive, elective or other public office in the territory of Bosnia and Herzegovina.

For the reasons stated by earlier correspondents, Electoral Management Bodies (EMBs) should endeavour to avoid stepping into the judicial vacuum which often exists in post-conflict jurisdictions, even though there are often public expectations that an activist EMB should somehow vet candidates' human rights records.

More important is that elected representatives should enjoy no perceived or legal immunity from prosecution during their terms of office, and should remain in peril of losing their seats upon conviction for prescribed offences.

And more important still is sowing the seeds of the notion that an effective warlord in times of conflict may not transition well to an effective legislator in times of peace.

Maarten Halff is correct that a reasonably objective criterion, command or membership of illegal armed groups, was used to exclude a small number of candidates from Afghanistan's 2005 parliamentary elections.  He also correctly states that the mechanism enjoyed considerable in-principle public support.

However, in practice, the process of identifying such candidates was relatively opaque to the public, and left a perception of having netted only small fish.

The Election Commission of India had recommended to the Government of India that candidates against whom criminal charge sheets have been framed and accepted for trial by a court of law may be debarred from contesting elections. A Parliamentary Committee went into the matter and asked for responses from different political parties. It seems there is no unanimity among the parties and no law is likely to be passed in the near future.

On the other hand, candidates while nominating themselves, have to declare in the form of affidavits their criminal antecedents, if any. These affidavits are posted on the website and Non-Govt Organisations or political parties are given free access to it. The objective is to inform the citizens about the candidates' antecedents so that they can make an informed choice.