This blog is part of a series on selected aspects of the ICC Independent Expert Review Final Report released on September 30, 2020.
The Presidency is a highly influential and powerful unit within the International Criminal Court (ICC). Consisting of a president and two vice presidents, this unit has the power to determine the extent to which judges serve full time and to assign judges to the three divisions and specific chambers. The presidency is also the proverbial “front of house” for the court as it is deeply involved with external relations, including concluding cooperation agreements with states, promoting universality of the Rome Statute, and raising public awareness about the court. Internally the Presidency also holds significant power as it oversees the work of the Registry.
The ICC judges elect the Presidency for a three-year renewable term by absolute majority. Unfortunately, the election process has led to what the IER experts have labeled as “distasteful” campaigns and the “offering of inducements” in exchange for votes. The election takes place soon after six new judges have been sworn in and their votes are usually decisive, making them campaign targets. Reportedly, candidates in past elections have made promises in exchange for support, including promising to assign supporters to particular divisions and calling them to serve on a full-time basis from the beginning of their term even when the court’s workload did not warrant such action. To remedy all of this, the experts recommended the adoption of election guidelines (R171) and an amendment of the Judicial Code of Ethics (para. 406). Wasting no time, the current Presidency published the Guidelines on the Procedure for the Election of the Presidency in January 2021, in time for the Presidency elections to be held on March 11, 2021. The Judicial Code of Ethics was also amended in January 2021.
The experts’ recommendations are geared towards regulating campaigning and preventing any conduct that may constitute an inducement. The guidelines squarely address those aspects. The guidelines provide regulated opportunities for judges to present their candidacy and to summarize their suitability for the role. Judges wishing to vie for office can submit an expression of interest no later than February 15 of an election year. They may also hand in a statement of suitability to the appointed Presiding Officer, who is the only one authorized to distribute these statements. Candidates “must not distribute their statements independently” (section 1). Candidates have another opportunity at a preparatory meeting (section 3) to present their candidacy and answer any questions the other judges may have.
The guidelines also include ethical obligations (section 6) requiring the judges to exercise their responsibilities “with probity and integrity” and in full compliance with the recently amended Judicial Code of Ethics. The guidelines specifically state that, “[c]andidates shall refrain from any action that might, in the context of the election, be reasonably perceived as an inappropriate promise, gift, advantage, privilege or reward of a personal nature.” All of these measures sound like a reasonable attempt to prevent the perversion of the election process, but there are a few shortcomings.
While the existence of guidelines is a significant improvement, from the outside it is difficult to assess how useful they will be given all the secrecy that has shrouded past elections. The IER report gives an indication of how fraught the election process has been with unethical conduct, but only the judges (past and present) know the true extent of it all. Should such important processes be so opaque? The lack of transparency in past elections is a factor that may have contributed to the proliferation of toxic campaigning and untoward promises.
The guidelines do not include any sanctions, which is perhaps why the drafters opted to call them “guidelines” and nothing more, and this raises questions about how seriously they will be taken. The amended Judicial Code of Ethics states, “[a]ll limitations on electoral campaigning established in the Guidelines on the Procedure for the Election of the Presidency must be respected, any violation of which shall be a violation of this Code.” Although it is subject to the Rome Statue, and the Rules and Regulations of the Court, the Code also has no sanctions.
Other questionable provisions in the guidelines include section 6.3, which prohibits discussion or communication amongst judges about the potential outcome of a Presidency election unless all voting judges are given the opportunity to participate. That directive seems reasonable, although difficult to police. The remainder of the section, however, could be abused as it states, “[t]his does not preclude a newly elected judge, at her or his own initiative only, from speaking privately with outgoing judges only, in order to seek information about one or more candidates. Guided by the ethics of collegiality, any such discussion should be constructive and neutral in nature.”
The guidelines may be “amended, suspended or abolished by a majority of judges in a plenary session.” Time will tell whether this is a positive feature or one that will compromise the quality of future elections.
Despite the good intentions, constructive implementation of the IER recommendations and carefully chosen wording, the true impact of the guidelines remains to be seen, making the upcoming Presidency election one to watch closely.