‘Grading’ the Nominees for the International Criminal Court Judges Election 2021-2030: The Report of the Advisory Committee on Nomination of Judges—Part I

[Owiso Owiso is a Doctoral Researcher in Public International Law at the University of Luxembourg and Sharon Nakandha is a Program Officer with the OSF Africa Regional Office (OSF-AfRO). The views expressed herein are personal.]

Background

On 30 September 2020, the Advisory Committee on Nomination of Judges (the Committee) released its report. It included an evaluation of 20 candidates nominated by states parties for the 2020 election to fill six available International Criminal Court (ICC) judicial seats, each with a nine-year tenure commencing March 2021. The election will take place during the upcoming 19^th session of the Assembly of States Parties (ASP) from 07-17 December 2020.

The nine-member committee is composed of representatives from the different regions that make up the ICC’s membership:

1. African States: Kenya, Botswana.
2. Asia Pacific States: Korea, State of Palestine.
3. Eastern European States: Romania.
4. Latin American and Caribbean States: Bolivia, Brazil.
5. Western Europe and Other States: France, United Kingdom.

All the members of this Committee are trained lawyers. With the exception of the representatives of the State of Palestine and Kenya, the rest have all served as judges at either national, regional or international level. One member, Enrique Eduardo Rodríguez Veltzé also happens to serve as Bolivia’s Ambassador to the Netherlands, based in The Hague.

Article 36(3) of the Rome Statute sets out the formal requirements for appointment as a Judge of the ICC:

(a) The judges shall be chosen from among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices.

(b) Every candidate for election to the Court shall:

(i) Have established competence in criminal law and procedure, and the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings; or

(ii) Have established competence in relevant areas of international law such as international humanitarian law and the law of human rights, and extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court;

(c) Every candidate for election to the Court shall have an excellent knowledge of and be fluent in at least one of the working languages of the Court [being English and French as provided under Article 50(2)].

Paragraph 3(b)(i) constitutes the so-called List A candidates while 3(b)(ii) constitutes the so-called List B candidates. Of the 20 nominees, twelve have been nominated under List A and eight under List B. Judicial seats at the ICC are shared in as equitable a manner as possible based on, as Article 36(8)(a) requires,

1. representation of the principal legal systems of the world;
2. equitable geographical representation; and
3. a fair representation of female and male judges.

States parties are also required to ‘take into account the need to include judges with legal expertise on specific issues, including, but not limited to, violence against women or children’.

In terms of gender breakdown, nine nominees identify as female and eleven as male. By regional grouping, seven are from African States, seven from Latin American and Caribbean States (GRULAC), three from Western European and other States (WEOG), two from Eastern European States (EES) and one from Asia Pacific States (APS). The nominating states are Nigeria, Tunisia, Burkina Faso, Republic of the Congo (Congo-Brazzaville), Sierra Leone, The Gambia, Senegal, Trinidad and Tobago, Colombia, Mexico, Uruguay, Ecuador, Brazil, Costa Rica, the United Kingdom of Great Britain and Northern Ireland, Belgium, Greece, Bosnia and Herzegovina, Georgia and Mongolia.

The scorecard in brief

Guided ostensibly by Article 36 of the Rome Statute, the Committee based its assessment on the statements of qualifications provided by the nominating states, additional supporting material provided by the nominating states or the nominees such as CVs, nominees’ responses to a standard questionnaire and declaration, information from national institutions, vetting and reference checks, nominees’ performance during oral interviews, and information from national professional bodies, academic institutions and civil society organisations. Perhaps owing to diplomatic decorum, the nominees were all deemed qualified, but to different degrees.

Of the 20 nominees, the Committee concluded that ten are ‘highly qualified’, three are ‘qualified’ and seven ‘only formally qualified’. In other words, all 20 candidates are deemed qualified to sit as Judges of the ICC, but the degree of their ‘qualification’ differs. The table below provides a breakdown of the ‘scores’ based on the categories mentioned above.

‘Score’	List A	List B	WEOG	Africa	GRULAC	EES	APS	Male	Female
Highly qualified	6	4	3	2	4	1	–	3	7
Qualified	1	2	–	1	1	1	–	2	1
Only formally qualified	5	2	–	4	2		1	6	1

The Committee attempted to provide some guidance on its formulation thus-

a) Highly qualified: the candidate excels in terms of the experience and knowledge about the Court and its jurisprudence; it is very likely that he/she would be able to make an important contribution to the work of the Court.

b) Qualified: the candidate has some relevant experience and knowledge about the Court; he/she could contribute to the work of the Court.

c) Only formally qualified: the candidate meets the requirements set out in the Rome Statute for election as a judge, but it is uncertain if the candidate could make a noteworthy contribution to the work of the Court.

d) Not qualified: the candidate does not meet the formal requirements set out in the Rome Statute.

While the Committee did not deem anyone ‘not qualified’ in terms of its qualification metric above, it quite liberally made use of the ‘only formally qualified’ metric, a rather diplomatic phraseology that says a lot while simultaneously saying nothing, purporting to reveal the Committee’s opinion on suitability while not actually revealing anything conclusive. Depending on how one interprets it, it could mean that the Committee disapproves of the nominee, or reluctantly approves or simply does not know what to say. Either way, it is unclear how helpful the category of ‘only formally qualified’ is. Because of this uncertainty, one may conclude that the Committee is quite timid (or perhaps too diplomatic) in its approach to candidates.

In its report assessing candidates for the position of judge during the previous election, the Committee only worked with two categories: ‘formally qualified’ and ‘particularly well qualified’. From a reading of that report, the ‘formally qualified’ language was used in reference to candidates who ‘met the formal requirements under article 36 (3) (b) of the Rome Statute’. Unlike this current committee, however, the previous committee did not provide any explanation on the meaning of these criteria. That said, the fact that the current committee attempts to provide an extra level of detail in comparison to past committees is a step towards fulfilling the recommendations of the 2019 ASP resolution on the review of  the procedure for the nomination and election of judges.

The ‘rock-stars’ and the ‘outliers’ of List A

With the exception of Greece’s Viktor Panagiotis Tsilonis, the rest of the List A nominees have judicial experience in their respective countries. The committee categorised six List A nominees including Tsilonis as highly qualified, one as qualified and five as ‘only formally qualified’.

Most of these highly qualified nominees have one thing in common: they have experience either litigating or adjudicating cases before renowned international criminal tribunals and the ICC. Trinidad and Tobago’s Althea Violet Alexis-Windsor served as Trial and Appeals Counsel at the International Criminal Tribunal for Rwanda (ICTR) from 2004-2013. Sierra Leone’s Miatta Maria Samba, a formidable jurist, served as Associate Trial Attorney at the Special Court for Sierra Leone from 2002-2010, as Field Operations Officer for the International Criminal Court from 2010-2015 and has since January 2020 been on the Roster of Judges for the Residual Special Court for Sierra Leone. The United Kingdom’s Joanna Korner served as Senior Prosecuting Trial Attorney at the International Criminal Tribunal for the former Yugoslavia (ICTY) from 1999-2004 and 2009-2012. While Bosnia and Herzegovina’s Jasmina Ćosić Dedović has since 2016 served as a Judge at the War Crimes Section of Bosnia and Herzegovina’s domestic courts, her only experience with an international tribunal is as a Legal Assistant at the ICTY from 2004-2008, a rather junior role in comparison to the experience of others on this list. Similarly, the international experience referenced for Greece’s candidate, Viktor Panagiotis Tsilonis, is his role as an alternate member of the ICC Disciplinary Board of Counsel, member and vice-chairperson of the International Criminal Court Bar Association Professional Standards Advisory Committee from 2019-2020 and as a Junior Legal Adviser for six months at the ICTY (from his publicly available CV, this appears to have only been an internship).

While Belgium’s Laurence Massart does not have any international judicial experience, she has served in Belgium’s judiciary since 2000 and participated in 2001 in Belgium’s first universal jurisdiction trial of four perpetrators of the Genocide against the Tutsi, a trial commonly referred to as the ‘Quatre de Butare’ or in English, the ‘Butare Four Trial’. Considering the stinging indictment of the performance of some past and current ICC judges in the Final Report of the Independent Expert Review (IER report) it is commendable that at least four of the nominees on List A are individuals with some litigation and adjudication experience before international criminal tribunals. This is critical in light of the significance of criminal trial experience to the work of the ICC.

In some instances, the Committee’s assessment of some of the List A nominees raises more questions than it answers, particularly given their significant domestic experience as prosecutors and/or judges.

For example, the Committee concluded that Greece’s Viktor Panagiotis Tsilonis has ‘undoubted experience of drafting judicial decisions’ despite his publicly available CV only showing one example of drafting experience in his role as an alternate member of the Disciplinary Board of Counsel when ‘in December 2019 he drafted the landmark disciplinary decision in the Sluiter case’. As the Independent Panel for the Election of Commissioners to the Inter-American Commission on Human Rights emphasised in its 2017 report, the number and quality of candidates’ judicial decisions are important in assessing candidates for election to judicial and quasi-judicial bodies. One may question whether the drafting experience Tsilonis presented is sufficient. The Committee also concluded that he ‘demonstrated that he is knowledgeable about the general functioning of the Court, and is sufficiently familiar with the Rome Statute and the jurisprudence of the International Criminal Court’. By contrast, the Committee awarded Brazil’s Mônica Jacqueline Sifuentes the lukewarm ‘qualified’ score apparently because her ‘knowledge of the work of the Court is basic and was based principally on her reading and research’. Could the case of Tsilonis and Sifuentes simply be one of ‘who prepped better for the interview?’ Like Sifuentes, Tsilonis’ international criminal law experience appears limited. However, Tsilonis likely has more proximity to the inner workings of the ICC in light of his pro bono assignments with the Disciplinary Board for Counsel at the ICC and the International Criminal Court Bar Association. His experience teaching postgraduate studies in international criminal justice may also have given him an edge, though he only appears to have done this for one year as a visiting lecturer. Might this be what finally distinguished the two candidates and finally led to a different grading? Admittedly, despite the fact that Judge Sifuentes has been with the judiciary since 1992, her international experience is restricted to service as a Liaison Judge in Brazil for the Hague Convention on the Civil Aspects of International Child Abduction and the Hague Conventions.

Of the five candidates from the African continent nominated under List A, only one, Justice Miatta Maria Samba of Sierra Leone, got the ‘highly qualified’ grading. The rest fell in the ‘only formally qualified’ category. Nigeria’s Ishaq Usman Bello who has served as a Judge in Nigeria’s Judiciary since 1997 was deemed only formally qualified, apparently because based on his answers during the interview he ‘appeared notably to have a very limited knowledge of the Rome Statute, the practices and procedures of the Court and its jurisprudence’ despite having a LL.M degree in International Criminal Law. The Gambia’s Raymond Claudius Sock, a Judge of the Supreme Court of The Gambia since 2012 and a former Acting Chief Justice and former Minister of Justice and Attorney-General was deemed only formally qualified because ‘based on his answers … [he] has very limited knowledge of the Rome Statute and the jurisprudence of the International Criminal Court’. It is interesting to note that Sock was a member of the inaugural Advisory Committee on Nomination of Judges from 2012-2015. Senegal’s Aïssé Gassama Tall was deemed only formally qualified despite having served as a domestic Prosecutor from 1995-2011, Judge of the Supreme Court from 2015-2017 and as a senior civil servant in the Ministry of Justice since 2017. The Committee considered that she ‘does not have in-depth knowledge of the criminal law and procedure of the International Criminal Court and its jurisprudence, and that some of [her oral] responses …. were approximate’. The Committee highlighted two main challenges with respect to the Republic of the Congo’s Prosper Milandou. Despite having served as Judge and Examining Magistrate in the Republic of the Congo’s High Court since 2013, he ‘did not have in-depth knowledge of the criminal law and procedure of the International Criminal Court and its jurisprudence, including the work of the Pre-Trial, Trial and Appeals Chambers’. The Committee fell short of disqualifying him and concluded that he is ‘only formally qualified’. This is rather confusing because the Committee also left pending the issue relating to him meeting the formal requirements of Article 36 since his nominating state failed to provide ‘any definitive answer … on the legal requirements of that State to appoint a judge to one of its Superior Courts’. This takes us back to our earlier position on the lack of clarity on the ‘only formally qualified’ language used by the Committee.

Like the other Africa group candidates, the sole nominee from the Asia Pacific States group, Mongolia’s Khosbayar Chagdaa, who has served as Judge in the criminal division of Mongolia’s courts since 2006 and as lecturer of advanced criminal law since 2011 was deemed only formally qualified, again because on the basis of his answers at the interview he appeared ‘not [to] have in-depth knowledge of the Rome Statute or the jurisprudence of the International Criminal Court’ and because ‘[t]he Committee was not entirely persuaded that [his] oral proficiency in English … met the high standard prescribed under article 36, paragraph 3 (c), of the Rome Statute’. Notably, Chagdaa’s CV indicates that his oral and written English language skills are ‘advanced’. His CV does not indicate any knowledge of French, the other working language of the ICC. It is worth recalling that Judge Chagdaa was also nominated for the 2017 election and his language skills were an issue then as they are now. The 2017 committee was also ‘not convinced that [Chagdaa’s] oral proficiency in English … met the high standard prescribed under article 36, paragraph 3 (c), of the Rome Statute’. It is unclear, therefore, how the Committee determined that he is formally qualified while the formal requirement of Article 36(3)(c) expressly stipulates that a candidate’s English language or French language skills must be ‘excellent … and fluent’. Though the Committee indicates that its conclusion is ‘subject to the issue of language’, it is improbable that this recurring shortcoming can be remedied in time for the election in December.

The Committee’s main concern with each of these ‘only formally qualified’ nominees appears to be their performance during oral interviews conducted via a virtual platform, based on which the Committee concluded that their familiarity with ICC substantive and procedural law is limited. While the COVID-19 pandemic presented extenuating circumstances this time round, one cannot help but wonder whether a face-to-face engagement would have made a difference for the various candidates. The previous advisory committee indeed emphasised the importance of face-to-face engagements in assessing candidates. Whereas it is indeed important to select individuals with direct international tribunal or ICC experience, the reality is that many experts seldom have the opportunity to practice international criminal law at this level. One also cannot help but wonder whether there is a certain bias among Committee members because five out of nine (including its chair and vice-chair) are former ICC judges themselves? The Committee and states themselves have the unenviable task of striking a delicate balance; they must ensure that candidates have solid (international) criminal law experience and knowledge while at the same time recognising that not every good judge has had the opportunity to acquire international exposure. This does not necessarily make them undeserving candidates for this role. Looking back at the last election results, two candidates, Italy’s Rosario Salvatore Aitala (List A) and Benin’s Reine Alapini-Gansou (List B) made it despite being categorised as ‘formally qualified’ in the committee’s report. This may point to the fact that other considerations inform state voting patterns.

Further, it is worth recalling at this point the formal requirements of Article 36(3)(b)(i). List A nominees are required to ‘[h]ave established competence in criminal law and procedure, and the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings’. As Heller correctly observes, nothing in this provision, or indeed anywhere else in the Rome Statute, requires this competence and experience to be specific to the law, procedure and practice of the ICC. Established competence and relevant experience in criminal law and procedure suffices, though of course specific knowledge of ICC law and procedure is advantageous. Ultimately, the Committee’s assessment and conclusions on the above List A candidates are difficult to reconcile with the express requirements of Article 36(3)(b)(i), and are particularly inconsistent if considered against its glowing endorsement of Greece’s candidate despite his lack of actual judicial or prosecutorial experience either domestically or internationally or indeed any notable international litigation experience, as mentioned above. It is unclear, therefore, why the Committee misinterpreted and misapplied this otherwise express provision. What is clear, though, is that this misinterpretation has disadvantaged at least five nominees.

The curious case of List B

Four List B nominees were considered highly qualified, two qualified and two only formally qualified. The List B assessments appear to have privileged some nominees with diplomatic or academic backgrounds. The four nominees assessed as highly qualified have either a diplomatic or academic background. Tunisia’s Haykel Ben Mahfoudh is a long-serving academic with specialisation in public international law and international human rights law, having worked in various academic capacities since 1996. Mexico’s María del Socorro Flores Liera is a career diplomat who was involved in the Rome Statute negotiation process. Costa Rica’s Sergio Gerardo Ugalde Godinez is a career diplomat and international law practitioner with significant international litigation experience. Uruguay’s Ariela Peralta Distéfano is a practising lawyer with significant experience litigating in the Inter-American human rights system, and with a laudable track record of representing victims of human rights violations. Looking at the court’s history, states have tended to nominate diplomats to List B. A recent Open Society Justice Initiative (OSJI) report highlighted some of the criticisms raised with respect to List B judges, for example, their limited training and appreciation of criminal law despite having to adjudicate cases before a criminal court and their lack of experience managing complex cases. In the words of one interviewee quoted in the OSJI report, ‘Diplomats often lack relevant legal knowledge and put basic principles like impartiality into question’, and in the words of yet another interviewee, some List B judges ‘bring a human rights agenda to the ICC, which is very different in terms of methodology’. In the recent IER report, after hearing from different actors, the experts recommended an assessment of ‘the extent to which the particular experience and skills of judges elected from List B have added value to the work of the Court’. Looking at List B nominees for the 2020 elections, however, we can at least cancel one possible hurdle as all the candidates have a legal background.

Two nominees were deemed qualified. Georgia’s Gocha Lordkipanidze is a career diplomat who has served in various diplomatic and advisory capacities since 1992 and who is particularly familiar with the ECtHR and UN treaty bodies, having handled numerous cases before these bodies. He has also held various academic positions since 2007 with a focus on public international law and international criminal law, currently serves on two Council of Europe commissions, currently serves as Georgia’s Deputy Justice Minister and is, rather interestingly, a member of the Board of Directors of the Trust Fund for Victims established pursuant to Article 79 of the Rome Statute. The Committee appears to have been rather unimpressed with Lordkipanidze because ‘given his role as a member of the Board of Directors of the Trust Fund for Victims, he had not demonstrated greater familiarity with issues relating to victims’. If indeed the Committee’s assessment of all candidates is based on a common standard, presumably the standard of Article 36, then this observation about Lordkipanidze does not appear appropriate.

The case of Burkina Faso’s Gberdao Gustave Kam is particularly interesting. This is the second time that his country is presenting him as a nominee. The first time was in 2008 under List A. Even at the time, his profile was impressive. Despite having extensive international judicial experience spanning decades as a Roster Judge at the International Residual Mechanism for Criminal Tribunals for the former Yugoslavia and Rwanda (2011-2020), as Judge at the ICTR (2003-2012) and as President Judge of the Extraordinary African Chambers that conducted the Hissène Habré trial (2015-2016), the Committee deemed him simply ‘qualified’. The Committee unsurprisingly considered that he is extensively knowledgeable and experienced in international criminal law and procedure and practice. However, the Committee observed that while he ‘demonstrated some general knowledge of the Rome Statute … nonetheless he had only very limited knowledge of the Rome Statute framework … [and] did not appear to be familiar with the jurisprudence of the International Criminal Court or its procedures’. Should this rightly have cost him the coveted ‘highly qualified’ designation? It is important to note that the law, procedure and jurisprudence of the ICTR, on which the Burkinabe nominee served for almost a decade, laid the jurisprudential foundation upon which the ICC ‘learnt to walk’. Therefore, it seems odd that a judge who participated in laying that legal foundation is not deemed to be highly qualified to serve as judge of the ICC. Further, the same Committee considered the List A nominee from Bosnia and Herzegovina as ‘highly qualified’ despite her international experience being limited to a four-year  stint as a legal assistant at the ICTY and despite the Committee also concluding that ‘the candidate demonstrated knowledge of the Rome Statute and the jurisprudence of the International Criminal Court, although she was, perhaps understandably, more familiar with the procedures and practices of the ICTY’(emphasis added).

The conclusion regarding Kam’s suitability is even more puzzling when one examines the other List B nominees deemed highly qualified. For instance, Tunisia’s nominee was deemed highly qualified despite lacking judicial experience and despite the Committee noting that ‘although sometimes his answers were inaccurate, for instance regarding the role of victims’ participation, or were controversial (e.g. in relation to trials in absentia), he understands remarkably well the functions and powers of the [ICC]’. Other List B nominees deemed highly qualified – from Mexico, Costa Rica and Uruguay – also lack judicial experience, though they are experienced diplomats and international law practitioners. Looking back at List A, like Belgium’s candidate, Massart who the Committee credited for her involvement in the ‘Butare Four’ universal jurisdiction case, Judge Kam successfully handled the Habré trial, which was a first of its kind also anchored on universal jurisdiction and which was supported by the African Union and the Senegalese government, and which had significant international ramifications. One wonders why in the end, the same Committee scores Massart as ‘highly qualified’ and Kam as simply ‘qualified’. Is there perhaps something that we are missing here?

Another observation by the Committee which possibly reveals its actual reason for not considering Kam highly qualified is that, ‘[W]hile the candidate had had significant judicial experience in international criminal tribunals, he had been nominated as a candidate for List B … [and] did not provide any explanation for his inclusion on List B rather than on List A’. It appears, therefore, that the Committee’s dissatisfaction with Kam was not that his familiarity with ICC jurisprudence was unsatisfactory, but rather that he was nominated under List B and not List A. It is worth recalling that the nomination forms which also indicate the list category under which a candidate is nominated are submitted by the nominating state which also decides under which category to nominate the candidate. This and a nominating state’s failure to provide reasons for choice of categorisation are not the fault of the nominee, nor do they have any bearing on a nominee’s professional abilities and suitability for the position.

Finally, Colombia’s Andrés Bernardo Barreto González, a 40-year old lawyer who has variously advised political officials was considered only formally qualified because of his lack of experience and ‘a thorough knowledge of, or training in, international humanitarian law and international criminal law’ and his unfamiliarity with the law and procedure of the ICC. Doubts have also been raised elsewhere concerning his qualification for appointment to the highest judicial office in Colombia, a fundamental requirement of Article 36(3)(a) of the Rome Statute, though this does not appear in the Committee’s report. Further, González had failed to disclose a prior administrative complaint against him, but he was able to explain the circumstances of the complaint during the oral interview to the Committee’s satisfaction. Ecuador’s Íñigo Francisco Alberto Salvador Crespo, who is currently serving as State Attorney-General and previously served as a diplomat from 1982-1992, legal officer with the United Nations Compensation Commission from 1992-1996 and private legal practitioner from 1997-2018 was also considered only formally qualified apparently because he failed to demonstrate familiarity with the law and procedure of the ICC or indeed any ‘knowledge or experience of criminal law, international humanitarian law or human rights law’.

Overall, the Committee’s report is marred with some level of contradiction and inconsistency. On the one hand, it appears that it ranks candidates who have a demonstrated understanding of international criminal law highly and yet on the other hand, for some candidates, it insisted on specifically seeing a clear understanding of the International Criminal Court and its procedures.