Dear Excellency,
We are writing to you in advance of the official nomination period for candidates to be elected as judges to the International Criminal Court (ICC). Since the ICC's ability to fairly and effectively adjudicate cases rests on the quality of its judges, we urge your government to ensure that only the strongest candidates are nominated and, ultimately, elected by the Assembly of States Parties (ASP) at its tenth session in December 2011 in New York.
As you know, at its tenth session, the ASP will elect six new judges-a third of the bench-for a period of nine years. The Rome Statute identifies several criteria to guide ICC states parties in selecting judges. Article 36(3) provides that "judges shall be chosen from among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices." Every candidate for election as an ICC judge must have established competence either in criminal law and procedure (known as "List A" candidates) or relevant areas of international law (known as "List B" candidates). In addition, states parties should take into account the requirements enumerated in article 36(8) as to gender, geography, and type of legal system represented, bearing in mind the need to include judges with specific legal expertise on issues including violence against women and children.
Fulfilling these criteria is essential. But even when the criteria are satisfied, there is still a significant degree of latitude in determining which individuals are best placed to serve in the ICC. Our close observation of the court's functioning since it began operations has highlighted a number of practical considerations that we believe states parties should take into account to ensure that the best candidates are nominated and ultimately elected. Notably, we believe ICC states parties should place a particular emphasis on those candidates who possess substantial practical experience in criminal trials; can meet the many demands associated with adjudicating complex and time-intensive cases; and demonstrate a willingness to learn, including through ongoing trainings. We believe that candidates who possess these qualities, in addition to satisfying the Rome Statute criteria, will be best equipped to meet the challenges ahead.
1. Substantial practical experience in criminal trials
The upcoming election comes at a critical time of the court's functioning. Pre-trial or trial proceedings are actively underway in most of the ICC's six country situations under investigation; this pace will likely only intensify. Effectively adjudicating such proceedings requires individuals familiar with the demands of criminal trials, including the need to manage oral and written submissions of the prosecution, defense, and victim participants to ensure that pre-trial and trial proceedings run smoothly and respect the rights of defendants. Individuals with prior experience working in criminal trials-List "A" candidates-are much better placed to meet these demands.
As you know, the Rome Statute provides for a total of 18 judges on the ICC's bench: a minimum of six in each of the Pre-Trial and Trial Divisions and five in the Appeals Division. Based on the minimum voting requirements under the Rome Statute, states parties must elect at least three "List A" judges to the bench in the upcoming election.[1] However it bears highlighting that of the six judges whose mandates expire on March 10, 2012, four are assigned to the Trial Division, one serves in both the Pre-Trial and Trial Divisions, and one is assigned to the Appeals Division.[2] Therefore, to promote the efficient and effective functioning of the chambers, Human Rights Watch believes that at least five of the six judicial vacancies should be filled by individuals who have substantial practical experience in criminal trials. States parties should thus prioritize "List A" candidates in the nomination process. This will help create a deep pool of individuals with the requisite experience in criminal trials for the ASP's consideration when it comes time for elections.
2. The capacity and willingness to meet the demands of adjudicating cases over a nine-year term
The ICC has lost four judges due to health reasons. This points to how important it is that during the nomination and elections phases, states parties carefully consider which individuals possess the capacity (including stamina) and motivation to meet the many demands on judges before the ICC over a full nine-year term of office. States parties should nominate candidates who are able to manage extremely complex and time-consuming tasks associated with trials.
For instance, judges are required to assess individual applications submitted by, in some cases, thousands of victims seeking to participate in the pre-trial, trial, and appeals proceedings. Judges must also review carefully thousands of pages of material to determine which portions should be redacted to prevent the disclosure of sensitive material while preserving a defendant's right to a fair trial. Further, as cases before the ICC proliferate, judges should be prepared to sit on more than one trial at a time and potentially at more than one level, which means that the workload will only increase. This underscores yet again why it is essential to nominate candidates with substantial experience in managing complex criminal trials, but also the need to ensure candidates have the stamina to meet the demands associated with an increasing workload over an entire nine-year term.
Overall, Human Rights Watch urges states parties to ensure that the candidates put forward for election by the ASP possess a firm commitment to the ICC's mission of bringing to justice perpetrators of the worst crimes known to humankind through fair trials. States parties should understand that judicial staffing resources are quite limited, and candidates will have to shoulder the ever-increasing demands on judges in light of the ICC's expanding caseload.
3. Commitment to ongoing training
The ICC is a unique institution, and judges serving the court will inevitably face a number of unprecedented challenges. The bench shares with other organs of the court responsibility for, among other things, shaping the practice and policy of an international treaty-based institution, making meaningful a new model of victims' participation, protecting witnesses and victims in diverse, conflict-affected regions, and building support for the court's work through participation in outreach activities. All of these responsibilities must be discharged while developing the nascent jurisprudence of the ICC.
Even judges with significant prior experience managing complex criminal trials may not automatically possess the skills and knowledge needed to manage these challenges effectively. Ongoing training-for both new judges and those already on the bench-to present "lessons learned" and strategies for managing these challenges in the future will be essential. States parties should thus nominate and elect candidates who value continuing legal education and who are willing to participate in initiatives aimed at promoting legal innovation and coordination among all judicial chambers in adjudicating complex questions relating to law and policy.
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We hope these suggestions will assist your government in the nomination phase and ultimately, in determining which candidates should be elected to serve as ICC judges.
Please do not hesitate to contact me should you have any further questions.
Sincerely,
Richard Dicker
Director
International Justice Program
[1] The minimum voting requirement for "List B" candidates has already been satisfied. ASP Secretariat, Note verbale, ICC-ASP/10/S/04, February 7, 2011, http://www.icc-cpi.int/iccdocs/asp_docs/Elections/EJ2011/NV-Election-Jud... (accessed May 12, 2011), pp. 12-13.
[2] Judge Sylvia Steiner is assigned to the Pre-Trial Division where she is part of Pre-Trial Chamber I, and is also sitting on the Jean-Pierre Bemba trial bench.
