In an off year for major elections at the International Criminal Court (ICC), the forthcoming meeting of the Assembly of States Parties (ASP) will nonetheless have ICC elections high on its agenda. States should grasp this opportunity to strengthen the ICC by making sorely needed improvements to election processes.
When the ASP meets from December 6-11, 2021 there will no major elections (only the deputy prosecutors will be selected). The ASP elects ICC judges every three years and a new prosecutor every nine years. At its last session, states parties elected six new judges and the third ICC prosecutor. Traditionally, the ASP has not dealt with election matters during “non-election” years. That is now changing for a variety of reasons. First, in 2019 the ASP adopted a resolution on the review of the procedure for the nomination and election of judges. That resolution launched an ongoing review of the judicial election process. Second, the Independent Expert Review (IER) has issued recommendations to improve national nomination processes for judicial candidates and to reinforce the system for the election of the registrar. Finally, a pending evaluation of last year’s election of the prosecutor provides an opportunity to identify other improvements. With these mandates, states meeting in December have a clear opening to advance principles of fairness, independence, integrity, and merit in all aspects of ICC elections.
Election of the Registrar
According to the Rome Statute, the plenary of judges elects the registrar, taking into account any recommendations by the ASP. Elaborating on this rule, the ICC Rules of Procedure and Evidence state that the Presidency shall establish a list of candidates, transmit it to the ASP with a request for recommendations, and forward the list together with any ASP recommendations to the plenary of judges. The IER found this system to be inadequate and recommended among other measures the establishment of an expert body. The expert committee would select candidates and provide a shortlist to the ASP for confirmation and transmission to the judges. The IER also recommended extending the registrar’s term from five to seven or nine years and making it non-renewable.
The Justice Initiative has observed irregularities in the relationship between the registrar and the judges. Such irregularities have an impact on the ICC’s governance framework and are partly rooted in the system for election of the registrar. In particular, the current system incentivizes candidates to make campaign promises to judges regarding Registry services that unduly favor chambers or individual judges. Once in office, a registrar retains a strong incentive to cater to the demands of individual judges or groups of judges even if unreasonable and at odds with an efficient use of court resources. Examples of such demands include excessive requests on ICC vehicles, office space or other perks, and pressure to hire a judge’s family member.
These problems warrant changes to the process for election of the registrar. The establishment of an independent, expert committee is a fundamental component of the IER recommendations. Elections of ICC officials have been tainted by political arrangements, including vote-trading, and have not always resulted in election of the most qualified candidates. The ASP has gradually introduced independent expert committees for the election of the judges and the election of the prosecutor. With the next registrar election coming up in early 2023, it is urgent for the ASP to consider the IER recommendations.
Some have argued that adoption of the IER recommendations would require an amendment to the court’s legal texts. That is certainly true for any changes to the term of office or alteration of the body ultimately responsible for the election. However, last year’s process for the election of the prosecutor demonstrated that it is possible to introduce creative improvements within the statutory framework. In particular, although ASP resolutions give states parties freedom to nominate any prosecutorial candidate, the ASP Bureau devised a system to have candidates nominated at the end of a fair and competitive selection process.
Similarly, it would be possible to introduce an independent selection process for the 2023 election of the registrar without prejudice to a later, full review of the election process. For example, for the 2023 election, an expert body could produce the shortlist that the Presidency would then forward to the ASP for recommendations. Time is short, but it is still possible to set up such a body if there is sufficient political will.
As states parties consider the 2023 election of the registrar, it is paramount that any proposed changes address past irregularities and make the election fairer and more transparent and merit-based. Giving the ASP a more prominent role without the addition of an independent component risks making the election more, not less, political.
According to the Rome Statute, all ICC officials must be of high moral character. The ICC and the ASP have so far failed to put in place adequate vetting procedures to certify that candidates meet the integrity requirement. Following intense civil society advocacy around last year’s election of the prosecutor, the committee in charge of the election commissioned background and security checks. While such practices represent improvement, they fall short of the full clearance needed for high-level positions.
To correct last year’s shortfall, the ASP Bureau adopted a proposal for vetting of the deputy prosecutor candidates. The ASP president developed the proposal in record time and the Bureau did not consult civil society. While the proposal is a step forward and includes a number of important elements, it also leaves a few gaps. In particular, the proposal does not explicitly provide for reputational interviews and makes the channel to report misconduct particularly burdensome. Asserting moral character requires more than just establishing a reporting channel for complaints. It requires putting out comprehensive notice about the channel as well as making that channel known, accessible, and trustworthy. Thorough vetting also requires reputational interviews for all candidates, even in the absence of complaints. This means that panels should interview several of each candidate’s current and former co-workers, including individuals not listed as references by the candidate. These interviews are important because not all misconduct incidents might be captured by a reporting channel due to multiple barriers. In addition, reputational interviews can explore managerial styles, collegiality, and respect for diversity.
While the establishment of an ad-hoc vetting process for the deputy prosecutors’ election was acceptable given the urgency of addressing the gap, it is imperative that the ASP now establish a permanent vetting mechanism for all elected ICC officials. Given the flaws in vetting for the deputy prosecutors, that process should not be reproduced in future elections. Rather, at its upcoming session the ASP should mandate the Bureau or a facilitation to use 2022 for the development of a permanent vetting mechanism for all future elections. The aim would be for the ASP to adopt this mechanism at next year’s ASP session. In doing so, the Bureau or facilitation should consult with civil society and other experts. In addition, the Bureau or facilitation could request views from the prosecutor, the head of the Internal Oversight Mechanism and other actors on the execution of the vetting proposal for the deputy prosecutors to draw any necessary lessons.
Prosecutor’s Election Lessons Learned
At last year’s ASP, states parties called upon the ASP Bureau to “examine ways to continue strengthening the process by which the Prosecutor is elected,” and to do this “through transparent and inclusive consultations with States Parties and civil society, and with feedback of the Committee for the Election of the Prosecutor and the Panel of Experts on the implementation of their mandate.”
The Bureau has requested input for this review from the former ASP presidency, as well as the Committee for the Election of the Prosecutor and the Panel of Experts. While these contributions are important and can help reflect on the past election and necessary improvements, states parties should commission an analytical study that includes those views as well as input from other sources including civil society. The Bureau has not yet designated state party co-focal points to lead the lessons learned process despite its intention to do so. As memories start to fade, it is imperative that the Bureau proceeds with the prosecutor election’s review as soon as possible. In order to contribute to this reflection, the Open Society Justice Initiative will soon be launching a briefing paper based on interviews conducted earlier this year with various actors who were involved in or closely observed the prosecutor election process.
A 2019 Justice Initiative report on ICC judicial elections concluded that nominations of judicial candidates to the ICC are largely non-transparent. Most states parties appear to “select candidates in a largely ad hoc manner, frequently privileging personal or political connections at the expense of transparency, competitive opportunity, and merit.” The IER report also identified much needed improvements in this area. The IER recommendations on judicial elections have been assigned for discussion to the Bureau’s New York Working Group, but it is unclear whether discussion on all recommendations will be concluded this year in order to start implementing them in the short term.
The next nomination period for ICC judges will start in January 2023, just 15 months from now. It is urgent that all states parties, in particular those who may be considering nominating a judge in the next round, adopt or revise their nomination procedures to guarantee a competitive, fair, and merit-based selection of candidates.
For the last two years, the Advisory Committee on the Nominations of Judges has received submissions from states parties on their national nomination procedures. Based on these submissions and other information, the advisory committee will prepare a compendium and reference document. The reference document, whose release date is unclear, could significantly assist states parties who are considering introducing or revising legislation on judicial nominations to the ICC bench. When developing the document, the advisory committee should consult with experts and review applicable international standards to judicial nominations.
Improving the processes for the election of ICC officials is one of the most significant actions that states parties can take to make the ICC more efficient and effective. With so many processes ongoing, it is imperative that the upcoming ASP session take concrete steps on multiple fronts, including independent selection, vetting, national nominations procedures, and a lessons learned process for the election of the prosecutor.