Andrea Trigoso joins JiC for this guest-post on the election of judges to the International Criminal Court (ICC). Andrea is a qualified lawyer with an LLM and experience in International Criminal Justice. She also holds a masters in Transitional Justice, Human Rights and the Rule of Law.
Later this year, the Assembly of States Parties (ASP) of the International Criminal Court (ICC) will elect six new judges to the ICC for the next nine years. States have presented 20 nominees in total, comprising lists A and B. Candidates have been evaluated by the Advisory Committee on Nomination of Judges (ACN), which published a report on September 30th, grading the candidates as highly qualified, qualified, only formally qualified, and not qualified.
Following the report, several actors and organizations advocated for a merit-based election and campaigned against the practice of vote-trading, condemning any potential politicization of the elections. However, the ICC judge elections is inevitably a political exercise, carried out by a political organ (the ASP). It is not possible to escape politics.
The challenge is therefore to avoid politics but the unfair politics that the elections have displayed so far. Some states are politically and financially in better positions than others in their international relations. These advantages have been transferred onto ASP dynamics and, consequently, to the elections, creating politics that encompass power and resources disparities.
The report of the Advisory Committee on the Nomination (CAN) of judges exemplifies these politics in the criteria established for considering the candidates as “highly qualified”. A recent piece by Owiso Owiso and Sharon Nakandha insightfully explains the issues with the ACN “grading system”. Here, two examples will be briefly reviewed.
Victor Tsilonis, presented under list A by Greece, has experience litigating in his home country, but no experience in the judiciary or in the litigation or judicialization of mass atrocities. At the international level, he had a six-month internship at the International Criminal Tribunal for the Former Yugoslavia, and two pro-bono positions related to the ICC, none of which included judicial work. The ACN concluded that he was highly qualified for appointment as judge under the conditions of Article 36(3)(b)(i) of the Rome Statute, which requires “necessary relevant experience whether as judge, prosecutor, advocate or in similar capacity” (emphasis added).
The ACN used a different standard for Aïssé Tall, the candidate of Senegal for list A who was considered “only formally qualified.” The reasons for this conclusion were that, although she had relevant experience in the management of complex criminal cases as a prosecutor at the national level, she had only limited experience (two years as a judge of the highest Court in Senegal) presiding over criminal matters, and she did not have in-depth knowledge of the ICC and its jurisprudence.
It seems that what the ACN deemed most important and determinant was knowledge of the Rome Statute and the ICC jurisprudence, even when such knowledge is not required by the Statute itself. Tsilonis fulfilled that requirement and Tall did not. The question that arises is whether mastering the Rome Statute is the most important skill for a judge, or whether there are other more important skills, such as in-depth knowledge of institutions of criminal procedure, managing complex evidence, mastering the principles for legal argumentation, showing the capacity to remain independent amid political attacks, and so on.
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