ICC 2020 Judicial Elections: Mexico aims for a seat on the bench

This blog is part of a series highlighting local perspectives about ICC judicial nominations, including the candidate’s qualifications and the process that led to their nomination. By hosting this series, the Open Society Justice Initiative (OSJI) seeks to provide a platform for local actors with knowledge of that background to inform a wider international audience. OSJI does not necessarily endorse the views expressed. OSJI has offered an opportunity to civil society groups from all nominating states to express their views.

Graciela Martínez Manzo, is the current Executive Director of the Mexican Commission for the Defense and Promotion of Human Rights

Olga Guzmán Vergara, is the Advocacy Director of the Mexican Commission for the Defense and Promotion of Human Rights

During the 19th Assembly of States Parties (ASP) to the International Criminal Court (ICC), states must elect six highly qualified individuals for the position of ICC judge. Mexico has nominated Ambassador Socorro Flores Liera to one of the six open positions. The ICC bench is composed of 18 judges, six of which are elected every three years for a nine-year term.

The process for nomination and election of ICC judges is governed by Article 36 of the Rome Statute. This year, states initially nominated 14 candidates under List A (with competence and experience in criminal law and criminal proceedings), and 8 candidates under List B (with competence and experience in relevant areas of international law, such as international humanitarian law or human rights law). Two of the nominees have since withdrawn and 20 are therefore now vying for the six posts.

The Mexican nominee is a List B candidate, and the state claims she was nominated using the procedure for appointment to the highest judicial institution in the state (the Supreme Court), as per Article 36(4)(a)(i) of the Rome Statute.

During the nomination process, a few factors prevented adequate scrutiny of the candidate(s). Weaknesses in the nomination of ICC judges can undermine the Court and further contribute to its decreasing support.

Lack of a legal framework for nominations

Mexico lacks a policy or legal framework governing judicial nominations to the ICC. As a result, there is no transparent process to ensure fairness and that those who are nominated are properly qualified. Considering the absence of an impartial and independent selection body, the Senate of the Republic and the Secretariat for Foreign Relations should develop a transparent selection procedure that guarantee equality of opportunities among prospective candidates. The nomination process should establish a clear set of merit-based criteria that ensure equity and to adequately assess a candidate’s profile, capacity, knowledge and experience.

Lack of transparency and public information on the vacancy

The selection process did not include transparent consultations with higher judicial institutions, law schools, lawyers’ associations or specialized civil society organizations. There was no open call for the position, and the vacancy failed to be duly advertised.

Non-compliance with the procedure for appointment to the highest judicial offices in the state

The selection process used by the Mexican state did not comply with Article 36(4)(a)(i) of the Rome Statute. The President of the Republic did not present a shortlist of candidates, and the Senate of the Republic was not involved in the selection process.

The Mexican Embassy states in its note verbale to the ASP Secretariat that Ambassador Flores Liera is qualified to sit on the Supreme Court – the highest national judicial institution in Mexico — in accordance with Article 95 of the Mexican Constitution. Requirements to sit on the Supreme Court bench include being at least 35 years old, having a law degree and at least ten years of experience, and enjoying good reputation. However, the note verbale does not refer to the process used to select judges to the Supreme Court, as established in Article 96 of the Mexican Constitution.

According to Article 96 of the Mexican Constitution, the President of the Republic proposes a shortlist of candidates to the Senate, which elects one of the candidates by a qualified majority. If the Senate fails to elect a single candidate, the President shares a new shortlist. Should the Senate fail to elect a candidate in the second round, the President of the Republic can proceed to appoint one of the individuals from the shortlist.

Due to the government’s failure to comply with the Mexican Constitution’s procedure for appointment to the Supreme Court, civil society organizations were not able to participate in the selection process for the Mexican ICC judicial nominee. Normally, civil society organizations can pose questions to Supreme Court candidates to scrutinize their background and experience.

Civil society participation and scrutiny is key to ensure that the Executive’s and the Senate’s decisions are carried out in accordance to the Rome Statute’s requirements, as well as to guarantee the candidate’s independence and fitness for office.

Nomination of a Mexican government official

ICC judicial candidates must not only fulfill the technical requirements for the position, they must also meet integrity and independence requirements.

The Mexican nominee’s experience and knowledge of international humanitarian law and human rights law is undeniable. These qualities led her to hold her current position as Permanent Representative of Mexico to International Organizations, based in Geneva, Switzerland.

However, her current affiliation with the government cannot be disregarded. In this respect, it is important to note that the UN Special Rapporteur on the Independence of Judges and Lawyers, has observed that, “if the body is composed primarily of political representatives there is always a risk that these ‘independent bodies’ might become merely formal or legal rubber-stamping organs behind which the Government exerts its influence indirectly”.

For all the aforementioned, Mexico must implement and enforce an open, transparent and merit-based criteria that seeks to nominate the most qualified individuals for the position of ICC judge.