IER Blog Series: “Court’s problems may be in part the result of the standard of some judges…” –striving to improve the ICC Bench

This blog is part of a series on selected aspects of the ICC Independent Expert Review Final Report released on September 30, 2020.

Six new International Criminal Court (ICC) judges were sworn in earlier this month. Yet again, this election cycle brought to the fore procedural and substantive deficiencies of the ICC’s nomination and election process (weaknesses detailed in the Justice Initiative’s Raising the Bar report). Whilst there has been progress, the ICC judicial election process is so problematic that experts engaged in the Independent Expert Review (IER) dedicated a portion of their report to the issue despite it not being within their original mandate.

Campaigning and Vote Trading

Toxic campaigns and vote trading remain a concerning part of the ICC judicial election season every three years. As the experts indicate, the influence of politics on the process is evident. They criticize the “weak” phrasing in the 2019 Assembly of States Parties (ASP) resolution on the procedure of nomination and election of judges (2019 ASP resolution) encouraging states to refrain from trading votes (para. 963). According to the experts, it should have been accompanied by a decision to refrain from such practice. Vote trading often results in states overlooking merit in exchange for political support on other issues or nominations for other international positions. Campaigning (which often goes hand-in hand with vote trading) harms those with no resources to campaign, once again overshadowing merit. Having acknowledged all of that, the experts note a lack of state interest to do away with these harmful practices. The report recommendations therefore focus on other factors, including improving the national nomination process and the work of the Advisory Committee on Nominations (ACN).

National Nominations

National nomination procedures are key, as the experts point out. If all the candidates nominated were of a high caliber, the vote and election processes would be less consequential. As presented in previous blogs and in Raising the Bar, national nomination procedures vary from state to state. However, most lack transparency and civil society organizations have observed irregular practices, as described here, here and here.  

To rectify the situation, the experts recommend the harmonization of nomination procedures (R376). This includes requiring states parties to provide information about their procedures for  nominating candidates. The 2019 ASP resolution merely “encourages” states to submit such information to the ACN, but the experts believe they should be required to do so (para. 973). In 2020, only 19 out of 123 states parties submitted this information, which shows the validity of the expert’s point.

In addition, the experts recommend that when submitting their nomination, states enclose a certificate setting out the procedure leading to the candidate’s nomination, completed and signed by the senior official responsible for the process (para 973).

The experts go on to say that the ASP should compile guidelines and a list of criteria that should apply to national nomination processes (R377) in time for the 2023 judicial elections. This will take time and therefore states should take immediate action.

Other measures the experts propose include the countersigning of the questionnaire completed by candidates by a “senior member of the Judiciary or of the relevant judicial nominations/appointments body confirming the accuracy of the information provided” as a measure to officially certify the information provided (para. 972).

Other suggestions include discouraging states from using the International Court of Justice (ICJ) nomination procedure, which the experts denounce as lacking transparency and riddled with shortcomings (para. 967). Currently, the procedure for nomination of candidates for the ICJ is one of the two processes allowed for nomination of judges. Eliminating the possibility for states to use such procedure would require a Rome Statute amendment, which is a fairly complex process.

Roundtables and Interviews

The experts suggest that nominees’ participation in interviews with the ACN should be mandatory. At the moment, states should merely “endeavor” to ensure their candidate’s attendance (para. 969). According to the experts, barring exceptional circumstances, failure to attend should result in disqualification. The experts express the same sentiment about attendance of the public roundtables (R371) (an event previously organized by civil society and now officially part of the elections process, where all candidates introduce themselves and respond to questions posed by states and civil society). Both the interviews and the roundtables are important opportunities for stakeholders to become acquainted with each candidate. Given their significance, mandatory attendance (virtually or physically) is a fair and reasonable suggestion.

The experts also suggest that questions for public roundtables should be informed by aspects of “the candidate assessments highlighted in the ACN report” (para 970). This too could enhance the quality of the roundtables, but there should be scope to raise other relevant questions and concerns.

Composition of the ACN

The experts suggest that the ASP “consider whether it is now appropriate to review the qualifications for membership of the ACN” (R380). While noting that the ACN has had very distinguished members, the experts suggest ensuring that at least five of the nine ACN members have established experience and competence as judges of international courts and tribunals. However, the Justice Initiative cautions against former ICC judges being too heavily represented on the ACN,  to ensure a balance between members who know the institution well and those who can bring fresh thinking and diverse ideas.

The ACN’s Report

The experts recommend that states parties respect the ACN’s findings. They also raise a crucial point: “it should not be appropriate for any State to vote for a candidate assessed by the committee as ‘unsuitable’ for a judicial role at the Court” (para 975, R378). While it is indeed essential that states take the ACN’s report seriously, that hinges on the quality of the report and on whether the committee is bold enough to rate candidates as unsuitable or not qualified when warranted. In 2020 the committee seemed reluctant to do so.  

List A and B

The experts did not shy away from  addressing the two lists used to nominate judges. The Rome Statute states that judges should have one of two sets of expertise: established competence in criminal law and procedure (list A) or established competence in relevant areas of international law (list B). The use of list B to nominate judges allows states to nominate diplomats and others without judicial experience.

The experts suggest the ASP consider “whether it is now appropriate to review the criteria applicable to and the profiles of candidates from List B, having regard to the significance of criminal trial experience to the work of the Court” (R379).  The Justice Initiative has advocated for elimination of list B, which would require a Rome Statute amendment. Until such a time an amendment is made, we propose that all candidates, be it from list A or B, have established experience in criminal law and procedure.

The IER report does not explicitly mention vetting, which was raised repeatedly by civil society organizations during the last ICC election cycle. According to the Rome Statute, judges as well as other elected officials must be “persons of high moral character.” However, to date the ICC has no mechanism to certify that candidates meet that requirement. Vetting is of great importance to help safeguard the reputation and legitimacy of the court, and ensure no ICC leader has a history or misconduct or unethical behavior. While discussions are ongoing about setting up a vetting mechanism at the ICC, states should also consider vetting candidates at the national level prior to presenting their nominations to ASP.

The experts’ recommendations have the potential to significantly improve the quality of the ICC bench. Progressive changes should be made in time for the 2023 elections. This means the ASP and individual states should start laying the foundation for change now.

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