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.
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.