A look at OSJI’s “Raising the Bar: Improving the Nomination and Selection of Judges at the International Criminal Court”

The judges of the International Criminal Court (ICC) continue to attract attention, sometimes for all the wrong reasons. Their suit before the International Labour Organisation for a salary increase as reported by the New York Times, and questionable legal judgements such as Pre-Trial Chamber II’s decision to deny the Prosecutor’s request to open a much needed, and clearly warranted investigation into the situation in Afghanistan are but two examples. These and other factors, have added to concerns about the election of judges and their qualifications, a topic which, in and of itself,  has raised eyebrows in the past. The Open Society Justice Initiative’s (OSJI) latest report Raising the Bar: Improving the Nomination and Selection of Judges at the International Criminal Court, provides useful information and recommendations on reforms that could address concerns raised not just by the Court’s detractors but by its friends and most ardent supporters as well.

The 68 page report, “examines—through ten country profiles—the process of how potential ICC judges are nominated at the national level. It also sheds light on ICC judicial election campaigns, the practice of vote trading, and the role of the ICC Advisory Committee on Nominations of Judges. In so doing, it seeks to contribute to ongoing reform efforts at the Court, help the ICC reach its full potential, and set a high bar for other criminal courts and tribunals”

According to the report, the 10 countries selected (Argentina, Canada, Costa Rica, Germany, Italy, Republic of Korea, South Africa, Uganda, United Kingdom, Uruguay) were “chosen based on a range of factors, including a sufficient amount of reliable information, a desire to include states from as many of the ICC’s five regional groupings as possible, and prioritization of those states that have nominated multiple candidates to the bench.”

OSJI conducted desktop research and primary source interviews from January to May this year and spoke to a variety of relevant actors including ICC judges (current and former), ICC staff, civil society organisations, government representatives, former members of the Advisory Committee on the Nominations of Judges.

The process for electing judges for the ICC is, in short, as follows: candidates must be nominated by a member state of the Rome Statute. After that, they must be assessed by an advisory committee which conducts interviews and report on each candidates’ relevant qualifications. Following that, the candidates are voted for by the Assembly of States Parties which has its own set of fairly complicated voting requirements and procedures that seek to maintain a gender-balance and fair geographical representation.

After introducing some of the challenges that have beset the ICC bench, the report details in separate chapters: the legal framework that governs the election of judges; the nominations from state parties and the factors that influence how some states choose their nominees; the politics of elections including campaigns; the work conducted by the advisory committee and  then it draws to a close.

One of the most disturbing revelations in the report is the process by which states pick their nominees. OSJI found that, “typically, international judicial postings are only accessible to individuals within certain elite social and political circles.” There is even an account of an unnamed ICC judge who never applied but was nominated after personal friend at the Ministry of Foreign Affairs gave them a call.  In addition, to a lack of transparency when it comes to domestic nominations, the report reveals that relatively few states nominate candidates at all. According to the report,  “Only ten States Parties to the Rome Statute (less than one percent of the ICC’s membership) have nominated half of all ICC judges elected to serve to date (24 of 49)”.

Anyone who has been to the ASP during an election year has witnessed first-hand, the tense, election atmosphere with states going “all out” for their desired candidate. During the last election round I recall seeing the photos of a judicial candidate placed on every single member states’ desk.

As poignantly expressed in the report, ‘It may seem perverse that the procedure for selecting impartial and independent judges to serve on one of the most important international courts is characterized as a “campaign,” but that reflects the practice to date.’  Candidates engage in expensive and time consuming campaigns, visiting embassies, travelling to UN Headquarters in New York, meeting diplomats and anyone else them deem relevant for their successful election. The report calls it “vote-harvesting” and notes how expensive it is, making the playing field uneven for states that cannot justify the cost.

What is worse is the vote trading. Vote trading is when states agree to support a certain candidate in exchange for a favour not dissimilar in nature but perhaps in a different international setting. As the report points out, this can often result in the qualifications and suitability of that candidate being overlooked for political expediency and leverage.  Although the practice has been discouraged by the ASP Bureau, it still takes place.

The most important part of the report is the concrete recommendations put forward including recommendations for states parties, the Assembly and for the Advisory Committee on Nominations of Judges. Have a look at them here.

As highlighted in the aptly titled, “Excellence, not Politics, should Choose the Judges at the ICC” article, after important factors such as gender-balance and fair geographical representation have been taken into consideration, excellence and merit should determine who serves as a judge at the ICC.