This year, the Assembly of States Parties (ASP) will elect six new International Criminal Court (ICC) judges. As pointed out in OSJI’s latest briefing paper, electing the best is essential to the future of the Court. To assist the ASP with this task and to provide an assessment of each candidate, the Advisory Committee on Nominations of Judges (ACN or the Committee) issued its report of its seventh session on September 30, 2020. The ACN convened remotely throughout early June to late September 2020 and, despite significant limitations arising from the COVID-19 pandemic, and needing to tackle over 600 pages of documentation, carried out its work in an overall positive manner.

The global pandemic affected this year’s methodology particularly with respect to the report’s timing. The ASP had requested that the ACN issue its report 16 weeks prior to elections, but the timeline was reduced to nine weeks, following agreement with the Bureau of the Assembly of States Parties. Similarly, the ACN members took turns to conduct filmed remote interviews with all candidates, to overcome the challenge of working across multiple time zones. The ACN did however indicate that this should not set a precedent, highlighting the importance of in-person interviews under normal circumstances.

During the 2019 ASP, the ACN’s mandate was significantly expanded following intensive advocacy from civil society. This constituted a vital step to empower the ACN to provide more comprehensive assessments in the hopes of enabling States Parties to elect the best judges. The ACN is mandated to :

• Assess qualities of nominees in light of submitted materials and the Rome Statute’s criteria;
• Prepare a compendium of submissions from States Parties and a reference document for States Parties on the issue of national nomination procedures;
• Develop a common questionnaire for nominees;
• Draw-up a standard declaration for nominees to attest to matters of moral character and past conduct;
• Reference check nominees; and
• Review and document national nomination processes.

National Nominations

While the ACN called on States Parties to submit information on their national nomination procedures, only 12 out of 20 nominating states submitted this information. Even in cases in which States Parties did submit information on their nominating procedures, these were often limited to basic references to one of the two nomination methods in the Rome Statute – the process for nomination of judges to the International Court of Justice, or to the highest domestic courts. Submissions often lacked explanations of what these processes consist of, or of how candidates were identified and evaluated.

Additionally, local civil society publications shed light on the fact that some states that had claimed to follow the process for appointment for highest judicial office, did not in fact apply such process when nominating their candidate.

Civil Society Input

The ACN also received submissions from civil society organizations. For instance, civil society organizations from Georgia and Mexico submitted information on the respective national nomination processes, to which their respective governments replied.  

While the ACN’s initiative to request civil society submissions is positive, the period to submit observations was excessively short and the request was not widely disseminated. The request for information was transmitted only to the NGO Coalition for the International Criminal Court (CICC) and its members on July 17 with a deadline of July 24. It is possible that this year’s challenging circumstances and strict timeline did not make a different timetable possible. In the future, the ACN could consider issuing a press release or sending a public letter to civil society organizations, providing an email address for any submissions, as the Independent Panel for the Election of Judges to the Intern-American Court of Human Rights has done.

Not having access to information that could have been provided by civil society may have prevented the ACN from fully assessing the professional track record of some candidates at the national level – and their shortcomings.

Despite this shortcoming, the report demonstrates a clear improvement in comparison to previous years, as the Committee seems to have seriously engaged with its (still limited) mandate under its Terms of Reference when it comes to assessing national nomination procedures.

Assessment of Candidates

The ACN evaluated each individual nominee on the basis of the requirements of Article 36(3)(a), (b) and (c) of the Rome Statute, and reached its conclusions and decisions by consensus. In doing so, the Committee states that it considered written materials submitted by nominees, the information submitted in the nominees’ common questionnaire and standard declaration, and the virtual interviews with each nominee.

High Moral Character

High moral character is required under Article 36 (3)(a) of the Rome Statute.  The ACN did go further than it previously had by requesting the Court’s Security and Safety Section to screen the nominees, and by reaching out to nominating states’ professional association bodies. While the report does not specify the details of the Section’s work, it seems to have fallen short of a full vetting process. As pointed out by the Committee, “not all the requests for criminal records had been submitted by the deadline required for the conclusion of the report.” While the Committee concluded that “the information of the vetting process was interesting but most importantly that there was nothing in the report that would disadvantage any of the candidates nor require bringing any matter to the attention of States Parties,” full and thorough vetting of all nominees should remain under consideration for this election cycle and all future elections. The signed declarations and the questionnaires are also an important first step as they involve nominees declaring for the record that they meet these requirements – but more should be done. As reported by the Independent Experts tasked with reviewing the ICC, bullying and harassment is common in the Court, and elected officials should thus have a clean record in this regard. A thorough vetting process could help establish that.

To assess all the other requirements set out in Article 36(3) of the Rome Statute, the Committee used the same list of questions for all interviewees. A reading of the report indicates that the ACN included questions concerning:

• ICC jurisprudence, practice and procedure;
• Functions of the Pre-Trial, Trial and Appeals Chambers;
• Admissibility of evidence;
• Knowledge of human rights and international humanitarian law;
• Knowledge of other legal systems;
• Law governing victims’ participation in proceedings;
• Witness questioning;
• Complementarity;
• Requirements for recusal of a judge; and
• Work within a judicial body in a multicultural environment.

The Justice Initiative’s research indicates that the quality of the Committee’s questions have considerably improved compared to previous years, and are now more adequate to assess candidates’ qualifications for the role.

Notably, the Committee introduced a four-tier formulation to designate candidates’ qualifications: “highly qualified”; “qualified”; “only formally qualified”; and “not qualified”. While these designations and descriptive evaluation provided for each candidate demonstrate a more nuanced and balanced approach to assessments, the Committee appears to have shied away from officially considering any of the nominees “not qualified” where such a designation may have been warranted. In particular, based on the description provided, certain candidates did not appear to meet the basic Rome Statute requirements either due to insufficient language skills, lack of necessary experience or qualifications for either List A or List B, or because they did not demonstrate their qualification for the highest national judicial office in their nominating state.

The Committee also included useful recommendations, including requesting that the Court’s Registry administer a general test to assess all candidates’ language capabilities which is in line with recommendations previously formulated by the Justice Initiative.

The ACN also recommended that the statement of qualifications submitted by each candidate should include, 1) the extent to which candidates meet the requirements for highest national judicial institutions, and 2) elaboration on why candidates are better nominated under List A or List B, given that certain candidates that are nominated under one list appear to be more qualified under the other.

All in all, the Committee has substantially improved its evaluation of candidates, and has introduced a new, more nuanced approach to reporting on each nominee’s suitability for the role of ICC judge. While much remains to be done to further improve the system, the Justice Initiative is of the view that the ACN should build on its own progress, and further enhance its role and working methods for future elections.

The Assembly of States Parties now has an opportunity and a responsibility to elect the best. As pointed out in the Independent Experts Review (IER) Report, and in Raising the Bar, vote trading should be abandoned and judges should be elected based on merit. Equipped with the ACN’s report, states parties should genuinely engage with it and be guided by its contents. The ICC can no longer afford to have inadequately qualified judges. Elections are upon us and the ACN has done its part, it is now time for states parties to act with the best interest of the Court at heart.