ICC Judicial Elections Reform: Some Progress but Still a Long Way to Go

The International Criminal Court (ICC) judicial elections have come and gone. Six new judges – from Costa Rica, Georgia, Mexico, Sierra Leone, Trinidad and Tobago, and the United Kingdom – were elected by the Assembly of States Parties in December 2020. The Open Society Justice Initiative has been keenly engaged in analysis of the ICC judicial elections. This blog offers some critical thoughts on how the election process unfolded and recommendations for the way forward.

The ICC continues to undergo a review process begun in January 2020, following recognition that the court has problems at various levels that need urgent solutions. States themselves have acknowledged that judicial nominations and elections are amongst those problems requiring fixing. In a resolution adopted at the 18th session of the ICC Assembly of States Parties (ASP), in December 2019, states parties agreed to improve nomination and election processes. The 2020 judicial elections therefore offered an opportunity to test the new provisions as well as states’ willingness to reform elections. Our assessment shows that, while there have been some modest improvements, states still have a long way to go to overhaul ICC election and voting practices.

First, the toxic campaigning culture that we criticized in our 2019 report Raising the Bar persists. As we said then, too often it is the candidates with the strongest campaigns, rather than those with the highest qualifications, who are most likely to get elected. 2020 presented significant challenges for campaigning, as pandemic-related restrictions made it impossible to hold embassy receptions and have candidates meet in person with diplomatic missions in different parts of the world. States, however, still found creative ways to promote their candidates, ranging from online meeting requests to Twitter campaigns and having candidates featured extensively in virtual events. In some cases, those candidates who campaigned most ferociously were well qualified. However, campaigning as a tactic is problematic because it does not prioritize merit, and rather focuses predominantly on political promises and vote-trading offers. It also affects the equality of opportunity among candidates, particularly disadvantaging those with limited capacity and resources to campaign.

Second, the 2020 election offered the opportunity to test enhancements of the process – notably an amended mandate for the Advisory Committee on the Nominations of Judges (ACN), which resulted in a more thorough and nuanced report, and state-led judicial roundtables with all of the candidates. It is difficult to measure the exact impact of these initiatives on the election results. Significantly, five out of six of the elected judges were found to be “highly qualified” by the ACN. One, however, was considered to be only “qualified,” due to his lack of in-depth knowledge on a number of areas concerning the court’s functioning. Importantly, there were at least four other candidates who the ACN also ranked as highly qualified but who did not get elected. In the future, when there are sufficient highly qualified candidates to fill all vacancies, states should consider voting only for those candidates, when the minimum voting requirements so allow.

Third, states continue to prioritize electing diplomats and other long-serving government officials as ICC judges. This includes government representatives who had previously engaged in the negotiation of the Rome Statute or other ICC instruments, or who had participated actively in delegations before the ASP and/or as members of the ASP Bureau – half of the newly elected judges have such a background. As we said in Raising the Bar, longstanding government service immediately or shortly before holding judicial office at the ICC could affect (perceived) judicial independence and impartiality. It could also denote prioritization of candidates with government connections over other qualified candidates, pointing to deficiencies in the national nomination process (see below). Sadly, this is also an indication that neither nominating states nor the ACN appear to attach sufficient importance to the desirability of all ICC judges having prior experience in managing complex litigation and criminal evidence.

Finally, the 2020 elections demonstrated how vital it is for states to continue to improve their national nomination procedures. Nomination at the national level is the first phase of the election process – in order for the ASP to elect the most highly qualified candidates, such highly qualified individuals must first be identified at the national level and put forward. During 2020, only 19 of 123 states parties communicated their nomination procedures to the ACN. Disturbingly, local civil society observed significant irregularities in the nomination of a number of candidates presented for election in 2020, and few to no efforts were made to make national level procedures more transparent, equitable, or rigorous. As Raising the Bar illustrated, national nominations for ICC judicial posts have overwhelmingly lacked a legal framework and often resulted in the random selection of candidates based on personal connections and considerations other than the candidates’ exceptional qualifications. The quality of the ICC bench will not improve until states take the nomination phase far more seriously, and put in place measures to objectively select those with the highest qualifications.

On the positive side, states went beyond the requirement to elect at least one female judge and elected four. This evens the overall number of female and male judges after six years of female underrepresentation on the bench. There is less to celebrate with regard to regional representation, as a lack of the required number of nominations from Asia meant that the region lost its opportunity to secure a seat through the minimum voting requirements. This further confirms the need for better national nomination frameworks, and equal opportunities for candidates from all countries and regions.

The next election round is scheduled for 2023. States now have two years to improve or adopt national nomination procedures for ICC judge candidates that are fair, transparent and merit-based. During this period, states should also consider the Independent Expert Review’s recommendations on national nominations and elections. Finally, in taking the ICC review forward, states should ask themselves if they are finally ready to put merit before politics in order to build a strong and legitimate judiciary for the world’s only permanent international criminal court.