Next week, the Assembly of States Parties (ASP) to the Rome Statute of the International Criminal Court (ICC) is holding its 18th Session in The Hague, The Netherlands. The ASP members will be grappling with significant issues affecting the ICC’s future, including those relevant to next year’s election of six new judges and a review process for the ICC. While not on the agenda, decisions made at this ASP are relevant in the context of the election of the next ICC prosecutor, which will happen at the following ASP session, in December 2020. At a moment of heightened scrutiny of the court’s work, the decisions made at this year’s ASP are crucial for the ICC to solidify its place as a credible institution of international justice.
A string of flawed judicial decisions, unsuccessful prosecutions, and questionable actions from its leadership has led many in the international justice community to acknowledge the need for improvement in the way the ICC conducts its work. The Open Society Justice Initiative (OSJI) has focused on the election of the next prosecutor, as well as reviewing the processes upon which judges are nominated and elected. We have closely followed and supported the advanced talks among states parties on the establishment of an Independent Expert Review of the ICC.
Nomination and Election of Judges
The Justice Initiative has particularly focused on improving the nomination and election of judges. We recently published the report Raising the Bar: Improving the Nomination and Election of Judges to the International Criminal Court. Based on extensive desk research and interviews with current and former ICC judges and staff, Raising the Bar makes a case for reforming the court’s judicial selection process. In particular, it examines the process of judicial nominations at the national level; the requirements of the Rome Statute; the role of the Advisory Committee on the Nomination of Judges; and judicial election campaigns, allegations of vote trading, and other under-explored areas of election practice. The report offers simple, practicable recommendations that can improve the nomination and election of ICC judges and, ultimately, contribute to the court’s performance and effectiveness.
States parties are currently engaged in discussions on a draft resolution aimed at improving the nomination and election of ICC judges, which they will agree upon at the ASP next week. It is paramount that they adopt this resolution in order to enhance the existing processes and the quality of judges. In particular, strengthening the Advisory Committee on the Nominations of Judges for it to conduct more meaningful and thorough assessments of candidates appears vital. Providing additional guidance for states to improve their national nominations processes is equally crucial.
The Justice Initiative will be holding an interactive panel on this issue at a side event during the ASP on Tuesday, December 3, from 18:15-19:45. For more information, see the event flyer here.
Independent Expert Review
Following calls and widespread support for an independent review of the ICC’s functioning, states parties initiated a process to convene an Independent Expert Review Panel (the panel) with a mandate to identify ways to strengthen the ICC and the Rome Statute system. The Justice Initiative regards this review process as an important step towards meaningful change and tackling some of the challenges that have hampered the court’s work.
The panel will assess three specific issues: governance, the judiciary, and investigations and prosecutions. The ASP is expected to approve the panel’s composition.
The review process will include the revision of a vast amount of documentation, coordination within and across divisions of the court, and consultations with different stakeholders, including civil society. If approved by the ASP, the process will begin in January 2020. Experts will then conduct consultations from February to March and deliver their recommendations in September 2020. The Open Society Justice Initiative welcomes this and remains committed to supporting the panel’s work.
The Next ICC Prosecutor
On August 2, 2019, the ICC published a vacancy announcement for the position of prosecutor. In addition to having the experience and technical qualifications required to head the office, the prosecutor must possess the highest standards of integrity and moral character. In this respect, the Justice Initiative has inquired about best practices for vetting candidates and assessing sexual misconduct in the hiring process, and underscored that each candidate’s history should be clear from any trace of misconduct or harassment. In the interests of the court and international justice, it is crucial that the next ICC prosecutor possess specific qualities, which include professionalism, integrity, leadership, and strong ethics.
In this period of momentous change, next week’s ASP will be critical in defining how the court will select its next generation of leaders and conduct its work in the years ahead. The Justice Initiative calls on states parties to rise to the occasion and carry out their responsibility as the court’s custodians.
Coline Schupfer is an Aryeh Neier Fellow at the Open Society Justice Initiative focusing on international justice, national criminal justice reform, and pre-trial justice issues. She holds a LL.B. in Law with French from Sheffield University and a M.St. in International Human Rights Law from Oxford University. Follow her on Twitter: @colineschupfer.
Yassir Al-Khudayri is an Aryeh Neier Fellow at the Open Society Justice Initiative focusing on advocacy, international justice, and anti-corruption. He hold an LL.M. from Leiden University and a Bachelors in Law from the University of Lisbon. Follow him on Twitter: @yassirkhudayri.