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

[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. Part I of this post can be found here.]

Part I discussed the Committee’s evaluation of the nominees based on the requirements of Article 36(3)(b) of the Rome Statute. Part II concludes the discussion by highlighting how the Committee dealt with other issues of concern under Article 36: nominees’ moral character; national nomination/selection processes and procedures; and language proficiency.

Moral character and integrity

Because of the particular emphasis that Article 36(3)(a) of the Rome Statute places on ‘high moral character, impartiality and integrity’, the Committee considered it wise to engage the assistance of the ICC’s Security and Safety Section in conducting a security and criminal record check of the nominees, primarily through requests for criminal records presumably from the nominees’ countries of origin or residence. Interestingly, this process also involved combing through open source information on the nominees including material from their internet and social media presence (presumably Facebook, Twitter, LinkedIn, Instagram, TikTok, among others). The Committee concluded that this process did not yield any adverse information against the nominees. However, some observations can be made here.

The wording of the Committee’s conclusion in this regard is rather odd. It states that, ‘The Committee was of the view that the information of the vetting process was interesting but most importantly that there was nothing in the report that would disadvantage any of the candidates nor require bringing any matter to the attention of States Parties’ (emphasis added). What exactly the Committee means by the word ‘interesting’ is unclear, but it most certainly piques curiosity. Hopefully, it merely reflects the variety of the nominees’ extra-curricular activities and hobbies rather than being diplomatic euphemism for the existence of information that might raise questions as to their moral character or integrity.

Suffice to note that some have questioned Nigeria’s Justice Bello’s handling of a case involving human rights violations and another politically sensitive case, though this does not appear in the Committee’s report. Could the Committee’s vetting process that focuses on security and criminal record checks and publicly sourced information (including candidates’ internet and social media profiles) have caught this? Going forward, the Committee may need to reflect on how to improve various stakeholders’ confidence in their selection process, particularly, how to ensure that individuals from all contexts can approach it to raise any issues of concern without the likelihood of victimisation or backlash from the nominating states. Of course, for the first time, the Committee invited civil society groups to provide it with information as demonstrated by the submissions by Georgian and Mexican civil society groups highlighting gaps in the national nomination processes of their countries. However, some issues are highly sensitive, and members of the public require the highest assurances of confidentiality and protection. Further, for future processes, the Committee should consider making this call public and providing a reasonable period within which interested groups and individuals can approach it with information.

It is also rather disturbing that some states (unspecified by the Committee, no doubt for diplomatic reasons) did not respond to requests for criminal records. Consequently, the Committee was unable to determine whether all the nominees have a clean criminal record. In this event, it would perhaps have been wise for the Committee to add a caveat to its conclusions on the nominees affected, for instance by noting that its conclusions are tentative, subject to the nominating states or the nominees themselves producing their criminal records. As the Committee recommends, it would be useful ‘that for future nominations, as a contribution to facilitate the vetting process, the material submitted with the nomination should include a certificate as to the lack of a criminal record in the candidate’s home country; the candidate must reveal if he/she has criminal convictions in any other country’.

National nomination/selection processes

According to information available on the ASP website, nineteen states parties have submitted information on their national nomination processes and procedures. Of these, twelve are states that have nominated candidates for the 2020 elections. These are Belgium, Brazil, Burkina Faso, Colombia, Costa Rica, Ecuador, Georgia, Sierra Leone, Trinidad and Tobago, Tunisia, Uruguay and The United Kingdom of Great Britain and Northern Ireland. According to the Committee’s report, Bosnia and Herzegovina, The Gambia, Greece, Mexico, Mongolia, Nigeria, Senegal, and the United Kingdom of Great Britain and Northern Ireland did not bother to provide any information at all, while one other, presumably Republic of the Congo, provided the information but stipulated that it would remain confidential, for reasons that are as yet unclear. Notably, the Committee’s report claims that the UK did not submit this information, but a one-page document from the UK is available on the ASP website.

The information submitted by most states claims that the domestic processes were ‘open and transparent’. However, the information is very brief and very thin on the particulars and details of those processes (some more than others) and does not therefore reveal much about them. The possible exceptions here are Georgia, which provided rather detailed information on its process (though some have questioned the process and its outcome), and possibly Sierra Leone, Uruguay and Ecuador, who provided reasonable amounts of information. Reading the information submitted by the various states, it quickly becomes clear that there is no uniformity in the information provided.

This unfortunate state of affairs can be attributed to the fact that this is a new function of the Committee and there is no clear guidance from the ASP or the Committee on the form and specific content of these submissions, leaving states to decide what information to submit, if at all, and how. Of course, Article 36(4)(a) of the Rome Statute provides generally that-

Nominations of candidates for election to the Court may be made by any State Party to this Statute, and shall be made either:

• by the procedure for the nomination of candidates for appointment to the highest judicial offices in the State in question; or
• by the procedure provided for the nomination of candidates for the International Court of Justice in the Statute of that Court.

Nominations shall be accompanied by a statement in the necessary detail specifying how the candidate fulfils the requirements of paragraph 3

Further, the relevant ASP resolutions on the nomination of judges require nominating states to indicate what specific procedure in Article 36(4)(a) above they adopted and to ‘specify[…] in the in the necessary detail the elements of that procedure’. However, this is simply a general guidance on procedure and the requirement to report rather than specific instructions on what exactly is considered the ‘necessary detail’ to be reported and how exactly to make that report, including the format. Further, as already mentioned, even those states that opt to provide this information can stipulate that it not be availed to the public. The report and other information that has since come out regarding some nominees are an indictment of the vagueness of these domestic processes, the lack of proper guidance to states from the ASP or the Committee and states’ overall commitment to nominating persons who fulfil all the different facets of Article 36. It is important, therefore, that states subject candidates to the highest level of scrutiny at home prior to presenting them for nomination before an international body of the ICC’s calibre.

The lack of transparency and credibility of national nomination processes has been the source of intense debate since the election of the ICC’s inaugural judges. For example, the nomination processes adopted by Mexico, Nigeria, Georgia and Colombia for the 2020 elections have all been publicly questioned. The design and reality of the Rome Statute system means that states retain exclusive prerogative in nominating candidates for election, a fact recognised by the Committee when it concluded that, ‘[T]he national nomination was an internal procedure of the State of nationality of the candidates and did not have any bearing on its assessment of those candidates.’ While it is desirable that national nomination processes are transparent and merit-based, it is inconceivable that all the 123 states parties to the Rome Statute can adopt identical procedures, given their different national legal and political systems and practices. However, it is at least advisable that the ASP provides guidance on the basic characteristics, criteria and requirements for these processes, albeit while affording states a margin of appreciation on how to design and implement their compliance procedures. It is also advisable for the Committee to provide guidelines on the specifics to be reported and the format of reporting. Until such time as such guidance is provided and the Committee’s mandate is extended beyond simply documenting these processes to evaluating them, we are unlikely to see any improvements to this aspect in the election of suitable candidates.

Language proficiency 

The issue of language proficiency often falls at the bottom of key considerations in the early stages, yet it is often a swinging factor during election ‘crunch time’. As highlighted above, judges must have an excellent knowledge of, and be fluent in, at least one of the working languages of the ICC. OSJI observed that some judges’ skills fall below working level fluency, which affects their ability to effectively undertake their assignments. However, this language requirement may exclude candidates from regions where states do not have English or French as their official language. Now may also be the time to reconsider this language requirement in light of the growing geographical and language contexts covered by the ICC. The question states may need to ask is whether this is a sustainable approach especially if the court continues to expand its work to cover various contexts.

Below is a summary of where the nominees fall on the ICC working languages scale, according to the Committee:

What should we make of all this?

The discussion above does not purport to make any evaluation of the qualification, desirability, eligibility and/or suitability of any of the nominees, independent from that made by the Committee. Rather, the observations made herein are that the Committee’s evaluations of the nominees are inconsistent and that, consequently, it is difficult fully to see what value the Committee’s report contributes to the election process. Possible explanations for this inconsistency are the facts that the nominees were not all interviewed by the same panel and that the interviews were conducted via a virtual platform. The Committee resorted to the use of three-member sub-committees, justifying this decision on ‘various constraints posed by the virtual format, including the time zones, the number of candidates, the language of the interview and the urgency of the task’. In an attempt to ensure a degree of uniformity in assessment, all Committee members watched the recorded interviews, though this does not appear to have harmonised the observations and conclusions of the various sub-committees. Without the benefit of a detailed account of the process, however, it is difficult to see the whole picture. The report only provides a précis of what can be assumed to have been a much more detailed process. To its credit, the Committee acknowledges that holding the interviews via a virtual platform was not conducive for the ‘effective discharge of its mandate’, perhaps a tacit admission that it might have had a better appreciation of the nominees’ abilities had they been interviewed in person. Indeed, as the IER report has observed, interviews enable the Committee ‘not only to make a full assessment of the experience, knowledge and ability of the candidate, but also to judge the personal qualities of the candidate’. Such full assessment is arguably not possible on a virtual platform.

Of course, it should be recalled that the Committee’s conclusions are not binding on the ASP. The ASP can elect any nominee from the list of 20 regardless of the Committee’s evaluation, as it has indeed done in the past. One might hope that the ASP will itself do a much better job of meritoriously evaluating the nominees based on the actual requirements of the Rome Statute. As is evident from the discussion above, additional evaluation of (some of) the nominees is necessary. However, as tempting as this thought is, it ought to be tempered with the acknowledgment of the role that politics and diplomacy play in the election of ICC judges. Despite the ASP ‘[e]ncourag[ing] States Parties to refrain from the trading of votes’, and despite the IER report noting that the practice affects the calibre of judges and makes the ICC ‘less effective and efficient in the global fight against impunity’, it is unlikely that the process will be any different come December 2020.