Happenings in The Hague: Time to Elect ICC Judges

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1/ What is happening with the bench of the International Criminal Court (ICC)?

There are currently 18 judges sitting on the bench at the ICC. However, in March 2021, the mandates of six of them will come to an end. These outgoing judges must be replaced; this is why elections are scheduled for December 2020 – to decide which candidates are the most suitable to become the new ICC judges.

2/ Who decides who will be the next judges? And for how long are they going to stay?

Since the ICC was created by States, it is only natural that the States Parties to the Rome Statute are the ones nominating and voting for the next judges. They will do this during the annual ICC Assembly of States Parties (ASP), to be held in New York from 7 to 17 December 2020. Discussions about an alternative are ongoing, however, as effects of the covid-19 pandemic and the consequences of US sanctions on ICC senior officials and those “providing material support” to them might affect this. But that’s another story...

Once elected by the States Parties, the new judges will serve a non-renewable term of nine years. Exactly when each judge will begin his or her new mandate in 2021 is yet to be determined, as this depends on the “end date” of the judges leaving the Court, which depends on the ongoing cases they are working on.

3/ OK, so we should have the elections in December 2020… but what was the process to get there exactly?

It all started with a nomination period during which States Parties were able to nominate candidates. This period was the first step in the process and concluded on 14 May 2020. All in all, 20 candidates from all around the world were nominated by States Parties. (Actually, 22 were nominated, but two of the nominations have since been withdrawn.)

Following the nomination period, the Advisory Committee on Nominations of Judges (ACN) assessed the qualifications of the 20 nominees. To do so, the ACN developed a questionnaire, asked for evidence of the candidates’ knowledge and practical skills, and verified the candidates’ references, among other things. Basically, the ACN was making sure that they didn’t lie on their resume! The candidates were given the chance to express their interest and show what they were capable of during interviews with the members of the ACN.

4/ This sounds like a lengthy but useful process. Do we know the results of their assessment?

It sure was! This process was a crucial step in the nomination and election process since the ACN, created in 2010, was independently assessing the suitability of the candidates and making sure that only the candidates with the highest qualifications would be appointed as judges at the ICC.

And yes, we do have access to the ACN’s conclusions. After it completed its assessment, the Committee compiled its results in a report that was recently made public and shared with relevant stakeholders. You can find it here.

5/ Oh! What were the main highlights of this report?

The report sheds light on the suitability (or unsuitability) of each candidate for a position as an ICC judge. The ACN decided to classify the suitability of the candidates in four categories: the highly qualified (those who are really great, with a lot of relevant experience and knowledge), the qualified (those who are great but lack a little something to be in the previous group), the only formally qualified (those that it’s ok to have nominated because on paper they meet the minimum criteria, but who would not be the best fit for the ICC bench) and the not qualified (well.. you can guess that one).

The good news is that the ACN considered the majority of the 20 candidates to be qualified (three) or highly qualified (10), and that none of them were not at all qualified. It’s also quite significant to note that among the nine female candidates, seven were deemed highly qualified by the Committee!

6/ How did committee members decide who were the most suitable candidates for the position?

Just as the ICC should be a symbol of integrity and impartiality, so must be the bench that composes it. This is why States Parties must refer to specific qualifications when deciding who to nominate as a judge.

First, the candidates that are nominated must “fit” into two categories, so-called ‘List A’ or ‘List B’. To apply under ‘List A’ a candidate must show that s/he has experience in criminal law and procedure, as practising judge, prosecutor or advocate. A candidate applying under ‘List B’, on the other hand, must show that s/he has knowledge of other areas of international law relevant for the position, such as international human rights law. Candidates must also have an excellent knowledge of one of the working languages of the Court (either English or French). This is only the bare minimum. Other expertise, especially on sexual and gender-based violence, children’s rights, and victims’ rights, should also be favoured.

Finally, a State Party should always make sure that the candidate it nominates has a high moral character and is someone whom it would itself appoint to its highest judicial instances. This means that the person should not have been involved in any sort of misconduct that would call into question his or her morality, including cases of sexual harassment and staff bullying. States must always elect candidates who respect these qualifications. Otherwise, the quality of the Court’s work will be affected, its credibility will be hurt, and trust in the Court and its decisions will be shattered.

7/ So, basically, the judges are elected based on merit?

Well, that’s the idea, but unfortunately, this is not always the case.

In some cases, States might decide to overlook the experience of the candidates and nominate/elect someone based on political alliances, strategies of vote trading, friendship, or any other personal reason. This generates a risk that, once elected, these candidates’ mandate and the decisions they make are tarnished and not seen as driven by fairness and a right application of the law, but potentially by personal interests. This is why the nomination process at the national level, as well as the rest of the election process, should always involve other stakeholders, including civil society!

Civil society is very involved in trying to ensure that nothing except merit is considered by States Parties in the nomination and election of judges (what a task, right?!).

8/ Well, let’s hope States Parties will listen. And also, how do we make sure that we don’t end up with a bunch of judges that all have the same background, age, culture, gender, etc?

Even though the ICC does not impose any quota per se, States Parties must respect what is called the ‘minimum voting requirements’ (MVRs) which have been created to foster diversity on the bench. Thanks to these requirements, the bench of the ICC should always be composed of at least nine judges from List A and 5 from List B to ensure that various skills and types of expertise are shared; at least six women and six men to guarantee gender representation; and at least two or three judges from each regional group to ensure adequate geographical representation.

Since the ICC is supposed to be a ‘World Court’, diversity is crucial. In addition to diversity, States should keep in mind that the objective is not to have their own nationals on the bench, but only the most competent and qualified persons possible.

9/ What’s the next step now that we have the ACN report? How can civil society play a role in ensuring that only the most qualified candidates are elected?

Now that the report is out, the ASP is organising public roundtables – open discussions with all the candidates where States Parties and other relevant stakeholders, including civil society, will have the opportunity to engage with them, ask questions, make comments, etc. Much like a public group job interview (no pressure, right…?). This is a great opportunity for civil society to ask the candidates questions regarding their competences and experience (or lack thereof), including on victims’ rights and sexual and gender-based crimes and, if necessary, to question any candidate on possible issues regarding their moral integrity.

But that’s not all! Civil society organisations should also try to directly engage with those representating their country. They can urge them to make choices based solely on the merit of candidates – including voting for qualified women and qualified candidates from under-represented regions. Finally, they can share with their States’ representatives the responses of the candidates to the questionnaire created by civil society, or at least give them visibility.

10/ So, now it’s time to wait for these public roundtables!

Indeed – but let’s not be lazy. We should all, including and particularly States Parties, get ready to exchange with the candidates.

This implies carefully reviewing the information made available by the ACN in its final report and in the questionnaires it submitted to the candidates. In addition to this information, additional questionnaires prepared by civil society organisations, including FIDH, were sent to all 20 judicial candidates to better assess their vision, qualifications, and views on international criminal law. The questions focus not only on the candidates’ expertise, but seek to include broader answers regarding their motivation, expertise outside of the professional sphere, perspective on gender mainstreaming or how they would deal with political pressure. Their responses to the questionnaires can be found on the CICC website, here. It’s very interesting, have a look!

When election day comes around, States Parties will hopefully be able to make a well-informed choice.

Stay tuned if you want to know what’s going to come out of the roundtables!

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