In December 2020, the International Criminal Court’s (ICC) Assembly of States Parties (ASP) will elect a new prosecutor, its own new president, and six new judges. This turnover in leadership comes at an appropriate moment for positive change, particularly in light of increasing criticism of the court and a recently launched review of the court. The Open Society Justice Initiative has focused on, among other issues, enhancing the process for nomination and election of judges. In light of the upcoming change of one-third of the court’s judges, states parties must ensure the nomination of the most qualified candidates.
Judges at the ICC are appointed following three broad phases: nomination of candidates by states, a review of candidates by the Advisory Committee on Nominations of Judges (Advisory Committee), and their election by the ASP. The period for states to nominate candidates opened on January 6 and will run until March 30 of this year. Each state party may only nominate one candidate. Nominees are not required to be nationals of the nominating state. No two nominees may be nationals of the same state party.
National nominations offer a first safeguard for ensuring that qualified candidates are considered for judicial appointment at the ICC, even if such practices as vote trading and compulsive campaigning follow. Once nominated, candidates and nominating states often engage in lengthy and costly election campaigns, and states frequently cast their votes based on considerations other than merit (for details on this, see the Justice Initiative’s 2019 publication Raising the Bar). However, by securing national nominations based on merit in the first instance, states parties can ensure a pool of well-qualified candidates from which the ASP can select the best individuals in accordance to the Rome Statute.
The processes by which judges are selected and appointed are important elements of judicial independence. As established by the European Court of Human Rights and echoed by the Inter-American Court of Human Rights, “the independence of any judge presumes that there is an appropriate appointment process.” This suggests that judges should be selected according to international standards of objectivity and impartiality. Carrying out nominations in accordance with international standards is therefore paramount in ensuring that the most qualified individuals reach the bench.
The Justice Initiative’s research has found that national nominations often suffer from over-politicization, with political factors trumping merit-based considerations when appointing judicial nominees to international judicial bodies, including the ICC. National nominations often lack open and transparent processes, and most states parties do not have a legal framework governing national nominations. This gives rise to the selection of candidates in a largely ad hoc manner, in which personal or political connections prevail over transparency, merit, and competitive opportunity. For instance, it is common for governments to directly approach individuals from elite social and political circles, rather than select candidates through open, fair, transparent, and impartial processes.
During its 18th session in December 2019, the ASP adopted a resolution revising several aspects of the process of nominating and electing judges. Although mostly focused on strengthening the Advisory Committee’s mandate, the resolution also sought to encourage states parties to take into account good national and international practice when undertaking national nominations, as well as to share information on their domestic procedures. During the discussions that led to the adoption of the resolution, several states parties indicated the need to improve the processes for national nominations in order to ensure high quality judicial candidates, and the importance of sharing best practices. The report of such discussions also identified several issues requiring further consideration and recommended practices by states parties such as:
- open and transparent procedures for nomination, including through public and open calls for candidates who may fulfil the criteria;
- clear, pre-established, merit-based criteria for the assessment of nominees;
- due regard for equitable gender representation;
- independent assessments of candidates by appropriate bodies, including government, judicial, and professional representatives;
- forwarding judicial posting announcements to relevant civil society organizations and groups to identify qualified candidates;
- engaging in consultation, as appropriate, with legal and academic institutions; and
- establishing and utilizing national panels of experts to assess and endorse candidates.
States parties should now capitalize on the improvements made in 2019 and commit to enhancing their national nomination processes. As recommended in Raising the Bar, states parties should enshrine the standards above in a national legal framework or, at least, a set of fixed rules for nominating judges to the ICC. Competent judges and credible appointment processes are fundamental pillars of any independent judiciary. By enhancing their national nomination processes, states parties can take a step toward ensuring that the most qualified individuals serve on the ICC bench.
Yassir Al-Khudayri is an Aryeh Neier Fellow at the Open Society Justice Initiative focusing on advocacy, international justice, and anti-corruption. He holds an LL.M. from Leiden University and a Bachelors in Law from the University of Lisbon. Follow him on Twitter: @yassirkhudayri.