Thoughts from the 10th Session of the Assembly of States Parties to the ICC

Teddy reports for JiC from New York, where the Assembly of States Parties’ meetings are currently under way. His focus in this post is on the complex process of electing six new ICC judges. Enjoy! 

A group of ICC Judges (Photo: ICC)

Thoughts from the 10th Session of the Assembly of States Parties to the ICC

It’s Monday afternoon and I’m sitting in a windowless conference room that is half full, with diplomats wandering in and out and interns sitting dotted about watching a video about the ICC that is supposed to be keeping everyone entertained for this break in the proceedings. Every desk surface in sight is covered with fliers, sweets and some other more lavish gifts all designed for one purpose – to persuade the 120 states parties of the Rome Statute to vote for one or another candidate running for the position of ICC judge.

This is the break in proceedings while the secretariat members count the ballots from the first round of voting. There will almost certainly be another three or four rounds to come over the next few days before we know which of the eighteen candidates will fill the six spots available on the ICC bench.

The voting system is spectacularly complex. It was constructed by an official from Liechtenstein in 2002 and is designed to meet two conflicting needs in the elections: the first is to have an open election that delivers the best candidates, and the second is to deliver a result that takes into account the geographical origin, gender and background of candidates.

The ASP, meeting in 2010 (Photo: Coalition for the ICC)

The system essentially goes as follows: there is a minimum voting requirement for each region. So, for instance, for Latin America and the Caribbean, everyone has to vote for at least two candidates. However, the group is required to put up at least four candidates (they have put up five this time). This means that it is extremely likely that there will be a number of Latin American candidates elected, but it is not guaranteed.

If that seems complex, then hold on because we’re just getting going. The same minimum voting requirement exists for the nature of candidates they are, defined by the terms “List A” and “List B”. List A candidates are those with a background in criminal law, List B candidates are those with a background in general international law, and there are minimum requirements for each category.

Lastly, there is also a gender minimum requirement. All of these minimum voting requirements fluctuate between elections in order to correct balances and prevent the overrepresentation of any particular group given all the above criteria. This has brought us to a stage where today, as one official I talked to put it:

“we are in the extraordinary situation where, for the first time in the history of international relations, in an election in an international organization we are seeing the necessity for affirmative action in favour of men given the overrepresentation of women on the ICC bench.”

As a consequence, the candidates for election this year are sixteen men and two women.

ICC Courtroom

Who will fill the benches of the ICC's courtrooms? (Photo: ICC)

The other thing that is relatively unusual about this election, when compared to others in the UN, is that it seems genuinely competitive. The elections every year for the non-permanent seats on the Security Council all have strict regional requirements that are shared out between states and the results tend not to have much to do with which states are most qualified to help protect international peace and security.

This means it is rather refreshing to see a large number of candidates go up against each other in an election that is relatively open. The candidates have all participated in forums organised by the Coalition for the ICC over the past few weeks in which they give speeches and answer questions from states – almost like a real debate!

Today, the elections begin, and to add yet another complicating factor, a winning candidate needs a two-thirds majority, meaning there will be repeated rounds of voting with candidates pulling out, and ballots being disqualified as states make inevitable mistakes in the voting process.

The final result will, like all elections in and around the UN, probably be decided by regional horse-trading, but within those regions there is a genuine choice that states have between candidates from radically different backgrounds and levels of qualification. No one here seems to have any certainty about any candidate’s chances, and it seems that there is, in fact, something close to real democracy going on.


About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in Assembly of States Parties, Elections, International Criminal Court (ICC). Bookmark the permalink.

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