This blog is part of a series on selected aspects of the ICC Independent Expert Review Final Report released on September 30, 2020.
Socrates described the essential duties of a good judge: to hear courteously, to answer wisely, to consider soberly, and to decide impartially. If the ICC is to be a top performing court dispensing high quality justice, it must have judges who possess the requisite technical knowledge and skills, as well as the personal attributes to work effectively as a bench. This puts a high premium on both selecting judges of the right caliber and providing judicial education once they are in office. The Independent Expert Review (IER) has found serious shortcomings on all these fronts.
In interviews conducted for our 2019 report Raising the Bar: Improving the Nomination and Election of Judges to the International Criminal Court, the Open Society Justice Initiative heard widely expressed concerns regarding the lack of preparedness of incoming ICC judges and the need for induction. In addition, we heard there is a need for ongoing professional development to ensure continuous improvement in technical skills and knowledge during their tenure. It is unsurprising that the experts heard the same concerns.
The first problem is that states do not always elect judges who are qualified for the job. The experts heard that some judges lack experience, knowledge, and interest in international criminal law. As a result, they conclude that shortcomings with the judicial appointment system were impossible to ignore even though they were initially not tasked to look into judicial elections (para. 961). Lamenting that states are electing judges on the basis of politics rather than competence, the experts make detailed suggestions on how to improve the system for nominating candidates and the role of the Advisory Committee on Nominations. In their view, it would matter less which judges were actually elected if there was a pool of high caliber candidates (para. 965).
The second problem is the lack of an adequate induction for incoming ICC judges. However well qualified, new judges cannot be expected to hit the ground running on every aspect of the court’s law and practice. They are required to have competence and experience in either criminal law and criminal proceedings (List A), or in relevant areas of international law (List B), not both. The Rome Statute is a unique legal framework that most incoming judges will not have experienced directly. In Raising the Bar, interviewees pointed to important skills that are often lacking. Some judges are unable to effectively examine witnesses and assess evidence and have difficulty with courtroom management, while others lack legal drafting skills or have insufficient knowledge of either working language of the court to work effectively.
The experts find the current short induction program for newly elected judges “highly insufficient” for acquiring a full understanding of the court’s unique features and practice (paras. 414–415). Consequently, they say the Presidency should “design and organize a compulsory, intensive and comprehensive Induction Program of sufficient duration for new Judges, soon after commencement of their judicial mandate, and in cooperation with other partners and stakeholders.” Setting out in detail what such induction should cover, the experts urge a tailored approach that takes into account the specific background and profiles of the newly elected judges (paras. 423–429).
Third, the experts highlight the need for continuing professional development for judges. Initial induction to bring new judges up to speed is only the first step. It is well recognized globally that practicing lawyers need to continually refresh their knowledge and introduce new skills. Continuing judicial education is mandatory in many jurisdictions. Hearing that some judges’ attitude towards taking part in training was “of the strongest possible hostility,” the experts stress that judicial education is now considered the norm in civil and common law jurisdictions alike, and can in no way be considered a commentary on their judicial credentials – in fact the opposite is true (paras. 431–434). Accordingly, the experts urge the Presidency to design and organize an annual continuing professional development program on relevant issues, drawing on “the advice, cooperation and support from universities, institutes and other organisations with recognized experience in professional development in the subject areas intended for the program.”
Knowledge and skills are essential, but a further major problem the experts identified goes to the personal attributes and behavior of ICC judges. While emphasizing that it does not seem to exist in all chambers at all times, the experts find problems resulting from lack of collegiality. These included: “poisonous relations,” public expressions of lack of respect towards other judges, limited deliberations, excessive adherence to the judge’s own legal system, late circulation of draft decisions, infrequent communications, existence of cliques, and persistent failure to reach unanimity (para. 463).
While acknowledging that there is no magic formula for attaining it, the experts call for promoting a spirit of judicial collegiality and improving working relations among judges through measures such as improved communication and dialogue (recommendations R185–R188). They note that lack of collegiality leads to dysfunctionality and affects the credibility of the court (para. 473).
Problems with judicial quality are serious and it is time to tackle them head on. The priority and close attention devoted by the experts to this vital issue is to be warmly welcomed. It is encouraging to see that the judges already revised the Court’s Code of Judicial Ethics in January 2021, introducing references to judicial collegiality. Hopefully, the new judges joining in March will benefit from an improved induction and all judges will be offered, and will embrace, training opportunities going forward. It remains to be seen whether states will do their bit, and in future elect only judges of the highest quality to the ICC bench.