This blog is part of a series highlighting local perspectives about ICC judicial nominations, including the candidate’s qualifications and the process that led to their nomination. By hosting this series, the Open Society Justice Initiative (OSJI) seeks to provide a platform for local actors with knowledge of that background to inform a wider international audience. OSJI does not necessarily endorse the views expressed. OSJI has offered an opportunity to civil society groups from all nominating states to express their views.
In December 2020, the Assembly of States Parties (ASP) of the International Criminal Court (ICC) will elect six new judges. This year, states have nominated 22 candidates for open positions. Georgia is amongst those states which presented its candidate for the election of a judge from the Eastern European group, as the term of a Czech judge is expiring. Georgia expressed its willingness to nominate a candidate during the 18th session of the ASP, when the Ministry of Justice of Georgia (MJ) announced that a highly qualified Georgian nominee would be selected through the national procedure.
The public interest toward the selection of a Georgian nominee was high for two main reasons: in 2016, the ICC Pre-trial Chamber I authorized the Office of the Prosecutor to open an investigation into the crimes allegedly committed during the 2008 August war. Although four years have passed since the ICC’s intervention, the critical lack of vigorous public information and outreach activities have had detrimental effect on the victims’ effective involvement in the investigation. The election of a Georgian judge could contribute to enhancing general knowledge about the ICC among the affected communities and society. Moreover, throughout the existence of the Court, there has never been a judge elected from Georgia. The prestige of having a judge serving at the ICC must have also influenced Georgia’s decision to nominate a candidate. In view of that, there were high expectations that the Georgian nominee would be selected through a fair, transparent and merit-based procedure.
General overview of the Georgian legal framework
In January 2020, Georgia elaborated a legal framework governing the nomination of judicial candidates to the ICC. The new regulations laid out competency-based and language requirements for potential candidates, and further stipulated that the candidate should be nominated in accordance with the requirements of Article 36 of the Rome Statute. LEPL Training Center of Justice (TCJ) was authorized to shortlist the applications submitted via an open call and to administer the candidates’ professional testing, which were later evaluated by invited consultants. The TCJ was supposed to recommend to the Government of Georgia the best candidate(s) following tests, and then it was up to the Government to nominate the concrete candidate(s) before the Parliament.
Concerns with regard to the national selection procedure
A pre-established nominating procedure was indeed a step forward. However, the shortcomings identified through the nomination process raised concerns that it lacked transparency and was flawed.
Lack of impartiality and independence of the selection body – the resolution introducing the legal framework (Resolution) failed to establish that the independent selection body should comprise members of the judiciary, legal circles, and civil society with relevant expertise. Rather, the selection procedure and examination of candidates’ qualifications was conducted by the TCJ, which lacks independence and impartiality as this body is accountable before the MJ and fulfills the objectives imposed by the MJ and other Deputy Minister.
Lack of NGO involvement – the Government recognized the role of the NGOs only in disseminating the call for applications and failed to consult them on the adoption of the legal framework or during candidates’ selection process despite their expressed willingness.
Nominating an acting state official – abstaining from nominating a government official to the role of ICC judge could be a guarantee of independence and impartiality of the selection process. Nevertheless, Georgia decided to put forward the candidacy of a government official, Gocha Lordkipanidze, who currently holds the position of Deputy Justice Minister.
Unexpected amendments in the legal framework – the initial version of the Resolution established that the TCJ had to propose more than one candidate to the Government, which itself was supposed to propose at least two candidates to the Parliament. However, the Resolution was later amended to allow both the TCJ and the Government to propose only one candidate to the Parliament. The framework also initially established that the Parliament should hear and vote for the candidate in accordance with the procedure for appointment of judges to the Constitutional Court of Georgia. Although Constitutional Court members are elected by a majority of three-fifths of the total number of members of Parliament (91 votes), the Rules of Procedure of the Parliament were amended a day before the voting procedure in Parliament, which allowed the approval of a nominee by a simple majority (76 votes).
Conclusion
Despite the significance of the nomination of a Georgian candidate, the deficient selection procedure undermined its legitimacy, raising disappointment among society and affected communities. Georgia applied a pre-established nominating procedure, which was indeed a step forward. However, the identified flaws raise concerns that the process as a whole may have been tailored to fit a specific person. These weaknesses further confirm that more should be done at the national and international levels to encourage credible national nomination processes and to enhance the quality of judicial nominees. Failing that, judicial nominations elected through flawed procedures could undermine not only national systems, but also the ICC.
Nino Jomarjidze works as the head of the International Litigation Team at the Georgian Young Lawyers’ Association. She also chairs the Georgian Coalition for the International Criminal Court.