The Politics of Electing ICC Judges: Some Unpopular Thoughts

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.

(Photo: ICC)

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.

Exposure to the ICC or other international tribunals is not always accessible for those who pursue a career in justice for mass atrocities. Having this criterion as a determinant one is troubling. It gives an unfair advantage to candidates from more privileged countries. Dismissing experience as judges or prosecutors of high courts of domestic jurisdictions of countries in the Global South and assigning great value to experience in international tribunals, even when the positions were not as senior as the ones other candidates held in their domestic jurisdictions is unfair. This standard measures all candidates’ qualifications based on career opportunities that were not accessible for all.  Such criterion is prejudicial with the Court consequently not benefitting from the expertise and diverse viewpoints of candidates that are disqualified under this standard. 

It is likewise surprising that the ACN considers all the candidates from the Western European and other States (WEOG) to be highly qualified. This is not the case for any of the ICC’s other regional grouping. WEOG States have the strongest diplomacies and more resources available for presenting and campaigning for candidates for judges at the ICC, which so far has resulted in the overrepresentation they have in the ICC. It suffices to do a quick check of the candidates, judges, former judges, members of panels formed for various purposes at the ICC to see repeated States and names. This practice is in contradiction to what the international community has been preaching with respect to the need for a structural change in the ICC. As long as the same actors keep rotating positions and representations, they risk repeating their same practices. 

Against these advantages, other candidates, especially those from the Global South whose national contributions to the Court are rather modest and whose budgets are quite stretched for a campaign in New York and The Hague, have limited chances to be noticed and heard by the international community. Opportunities to communicate their experience, message, and vision of the Court as well as their competence for appointment as judges are restricted to closed-door interviews, the public report of the ACN, and a panel discussion that civil society organizations might or might not organize.

These disadvantages are translated in the election of judges and in the representation of other regional groups on the ICC bench. Africa has the largest number of States Parties to the Rome Statute (33), followed by the group of Latin American and Caribbean States (GRULAC) (28), and the WEOG (25). At the moment, 4 Judges from Africa, 3 judges from the GRULAC, and 5 judges from the WEOG are sitting in the ICC. It seems that it is already customary to have more judges from the WEOG, but is this fair to regional distribution? If the answer is no, then the Court is in trouble. Diversity on the bench enables diversity in the interpretations of law and legal cultures. Understanding ICC cases in their context (especially when none are from the WEOG) is crucial for the legitimacy of the ICC decisions. This is perhaps part of the reason why the ICC has been struggling with legitimacy and what is preventing more States from joining the Rome Statute.

If the ASP aims for a truthful merit-based election that benefits the Court, it could consider establishing an “evaluation criteria” for the ACN that assesses qualifications besides knowledge of the Rome Statute, including other necessary skills ICC judges face and which could be measured more equitably among candidates. It could also consider making the candidates’ interviews public. Additionally, the mandatory voting requirements could be revisited to accurately reflect a fair regional distribution.

Other influential actors should be mindful as well of their statements and endorsements. The same platforms must be offered to all candidates regardless their nationalities, networks, or diplomats’ outreach. Additionally, advocates for merit-based elections must revisit the criterion to define merit, question it, and contribute to establishing a model that assesses the candidates’ qualifications to their real extent. 

There is no magic bullet able to solve the issues on the ICC judge elections. Perhaps offering more clear parameters for States to act in the elections would be a feasible solution for a fair and merit-based election that endows the ICC with the most competent judges, umpires able to understand and debate diverse interpretations of law across the globe. That could result in more fair decisions and greater legitimacy to the Court. 

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 Elections, Guest Posts, International Criminal Court (ICC), International Criminal Justice, Judges and tagged . Bookmark the permalink.

4 Responses to The Politics of Electing ICC Judges: Some Unpopular Thoughts

  1. It is true that Western European nations such as the UK, France, Germany and others have the legal epxertise for ICC judgeships but I think the answer is to help African, Asian and Latin American societies to reach their levels by judicious grants in aid!

  2. El roam says:

    Interesting post. But, and with all due respect, I disagree with almost everything stated here. First, I do agree with the assumption, that mastering the Rome statute or alike is not really necessary. This is because, what counts for skillful judge, is on the contrary, the capacity, to master quickly, complex and complicated cases. Whatsoever, the challenge presented by complexity, with or without mastering the Rome statute, is so huge, that, it wouldn’t matter finally.

    I strongly disagree, with that assumption, that this court needs diversity in legal and cultural issues. On the contrary. For, we must distinguish, between , universal and global perception on one hand, and international one, on the other. International, doesn’t mean universal with all due respect. This is an international court, not universal one ( although, naturally, striving to gain universal jurisdiction). International, means set of values, not shared by the whole world necessarily and unfortunately, but, values represented mainly by the West and North, not the East and the South with all due respect.

    Fundamental human rights values. Treating women with respect and equality. Treating homosexuals with respect and equality, is shared mainly by the western and northern states. Not other parts of the world. But, those are the leading values or issues, when dealing with atrocities and international law. We should treat with respect and tolerance, other cultures, yet, not from the legal aspects. When it comes to atrocities, we need strict attitude:

    And it is the progressive one. The northern and western ones. Not otherwise. Such tolerance and diversity, should be left to museums, not to international court.

    Thanks

  3. Objective Reader says:

    With all due respect this article falls far below your standards.

    First of all it is largely based upon the Owiso Owiso and Sharon Nakandha article which contains so many inaccuracies and has been heavily criticised within circles of civil society for ending up being a biased and almost ‘fake news’ article.

    To put it bluntly no one can write an important article if one reproduces ‘findings’ of another biased article. A thorough checking at the OpinioJuris article’s footnotes and links will make you shiver, because you will find many references being inaccurate and many things intentionally omitted – e.g. Can you imagine someone referring to your CV at https://justiceinconflict.org/author/mkersten/ while intentionally omitting your book OR your position at the Munk School of Global Affairs? Or asserting that your position at Munk School of Global Affairs is Not actually an academic one? Clearly it would clearly be preposterous and almost a libel; in fact one can be easily sued in most jurisdictions if one bases his/her ‘public conclusions’ upon such tremendous omissions.

    Secondly, it seems that this article as well is a classic example of the case that one ‘barks at the wrong tree’.

    Do we want change or not? Do we believe that new younger judges are needed in order to rejuvenate the Court or boost the Court’s productivity or not? Do we want judges who will be fully cognisant of the Rome Statute and its numerous singularities or would like instead to have judges who do not know a lot about international criminal law but who are experienced in their own distinct jurisdictions? Do we want inclusion diversity and small states’ representation from all over the world – and not just Africa, Latin America or Europe- or not? Would we like to see members of the civil society contributing to the Court’s critical work or not?

    Because otherwise articles like these end up having the function of an autoimmune disease; fighting against their own self which they wished or at least purported to protect. And all these via the use of close to ‘fake news’ sources.

  4. Mad Scientist says:

    After reading this article, I sensed that there is a misconception about the actual nature and function of the Committee. The ACN is not, or at least is not supposed to be a political organ, and it does not act as such, unlikely the ASP which is not only a political but also a legal body. The Committee is an autonomous, legal organ with a very particular mandate. To evaluate candidates in a personalised and holistic manner. The evaluation process is not a competition. The election process is. Therefore, it is one thing to say that the States Parties are politically influenced in casting their votes, and another implying that the Committee is applying political-based strategies to favour candidates. Besides, as the 2020 Independent Expert Report on the ICC suggested, the States Parties shall refrain from any vote-trading tendencies and respect all aspects of the Committee’s Report.

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