Civil Society Questionnaires for Judicial and Prosecutorial Candidates – a contribution to #ElectTheBest for the ICC

Matteo Tonella, Program Associate, CICC Secretariat

Civil society has asked ICC judicial and prosecutorial candidates to complete questionnaires regarding their background, qualifications, experience, and vision on international justice and the International Criminal Court. The purpose of this endeavor is to raise awareness about the candidates and to increase the transparency of ICC elections. 

At the 19th session of the Assembly of States Parties (ASP)—scheduled to take place in December 2020—ICC States Parties will elect six new judges, the next ICC Prosecutor, and other important ASP officials, including a new ASP Presidency. These elections come at a critical juncture for the ICC and the Rome Statute system against the backdrop of an increasingly complex framework for multilateral relations, which is further complicated by threats and pending sanctions. The Court is also currently undergoing a review process aimed at strengthening its performance. 

Every three years, the ASP elects six judges out of the 18 judges that compose the bench of the Court. Each ICC judge is elected for a non-renewable term of nine years. The ICC prosecutor is elected for a non-renewable term of nine years as well.

FIND OUT MORE ABOUT JUDICIAL ELECTIONS IN THIS VIDEO 

Since the first elections in 2003, the Coalition for the ICC has promoted informed and accountable decision-making by States Parties by ensuring that the candidates’ qualifications and expertise are public and well known and that processes are as transparent as possible. 

In line with those efforts and in keeping with a tradition in place since 2003, a group of 25 civil society organizations—in coordination with the CICC Secretariat—asked judicial and prosecutorial candidates to complete questionnaires, enabling them to expand on their respective qualifications and expertise as well as to promote fully-informed decision-making by State Parties.  

In endorsing these questionnaires, our organizations are aiming to contribute to fair, merit-based, and transparent elections so that the ICC benefits from the best possible leadership in carrying out its essential role as a court of last resort. The questionnaires will add to the information countries have to assess candidates and keep merit at the center of election processes,” affirmed Liz Evenson, Associate Director of the International Justice Program, Human Rights Watch.

Read the responses from judicial candidates here 

Read the responses from prosecutorial candidates here 

Elections at ASP 19 must be fair, transparent, and merit-based

The Coalition as a whole does not endorse or oppose individual candidates. Instead, the Coalition advocates for the integrity of the nomination and election procedures and for the election of the highest qualified candidates.

It is important for civil society organizations to take a robust and clear cut position in the election process, particularly regarding the nomination of judges as they must hold high moral character, and their backgrounds must reflect their principled positions in defending justice in any given situation”, affirmed Adilur Rahman Khan, Secretary of Odhikar.

The Coalition and its members call on States Parties to fully respect the provisions set out in Article 36 and 42 of the Rome Statute; encourage the development of transparent and vigorous electoral processes in broad consultation with civil society, national professional bodies, and other relevant entities; and strongly oppose reciprocal political agreements, or vote-trading. 

Merit should be the only guiding factor in the election for these crucial positions. The Coalition and its members strongly oppose reciprocal political agreements or vote-trading in all ICC elections, as a practice that undermines the efficiency and effectiveness of the legal institution” said Melinda Reed, Executive Director of Women’s Initiatives for Gender Justice.

As the ICC navigates perilous waters, threatened by sanctions imposed by the United States and a global climate of increasing hostility towards multilateral institutions, it is more important than ever that the election of Court officials be fair, transparent, and merit-based.

How do elections work?

The Rome Statute establishes a framework for judicial and prosecutorial elections, including by setting the minimum qualifications for judges and the prosecutor as well as by fostering fair and competitive elections.  

Article 36 of the Rome Statute establishes that “[j]udges 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.” It requires fluency in at least one of the working languages of the Court, which are English and French. In addition, it also directs States Parties to consider candidates’ “legal expertise on specific issues, including, but not limited to, violence against women or children.” Judges are nominated by ICC States Parties and elected by the ASP. 

In assessing the individual candidates, an Advisory Committee on the Nomination of Judges (ACN) assists the ASP. The ACN, whose mandate was revised at the 18th session of the ASP in 2019, produces an assessment of the candidates, based on a wide variety of information submitted by the nominating states, the candidates themselves, and civil society. The ACN provides a determination on whether a candidate is highly qualified; qualified; only formally qualified; or non-qualified for the position. On 30 September 2020, the ACN made its assessment for the upcoming elections available in a Report. Public hearings will follow in mid-October, where States Parties and civil society will be allowed to pose questions and interact with the judicial candidates. 

READ THE CICC FACTSHEET ON ICC JUDICIAL ELECTIONS

Similarly, Article 42 of the Rome Statute establishes that the prosecutor candidates shall be of high moral character, have competency and experience in criminal prosecutions and trials, and be fluent in English or French. According to the Statute, an absolute majority of the ASP shall elect the Prosecutor by secret ballot. However, the preferred state practice is to elect a candidate by consensus. 

For the 2020 election, the ASP and the Bureau devised a new process, whereby individuals applied for the position and were assessed by a Committee on the Election of the Prosecutor (CEP), which is composed of States Parties’ representatives from all regions, assisted by a panel of independent experts. According to ASP Resolution ICC-ASP/1/Res.2, as amended by ASP Resolution ICC-ASP/3/Res.6, States Parties could still nominate candidates, but the ASP Presidency discouraged them from doing so. The CEP delivered its final report on 30 June 2020, producing a shortlist of four candidates around whom States are currently negotiating to reach a consensus. On 29 and 30 July 2020, the shortlisted candidates took part in public hearings. 

Challenges and reflections around the new processes

For the current elections, States Parties have introduced new elements in both processes. 

The process to elect the Prosecutor is substantially different from before, now entailing the possibility for candidates to submit individual applications to an independent committee, whose mandate was developed by the ASP Bureau with input from civil society. Once concluded, the ASP will have to assess the course of the election as a whole with a view to determining how to further improve this process. In doing so, States Parties should consider receiving input from civil society as well as from other actors, including the CEP, which has offered to produce a lessons-learned report on its work.

The process led by the CEP was exemplary in terms of transparency and independence, and the Committee was guided by merit at all times. We were particularly pleased with the Committee’s initiative to seek background checks and security screening of all candidates, but we strongly recommend that the ASP introduces more thorough vetting at all future ICC elections to ensure that candidates comply with the ‘high moral character’ requirement,” said Mariana Pena, Senior Legal Officer at Open Society Justice Initiative.

"No Peace Without Justice had welcomed a process designed to bring greater transparency to the election of the ICC Prosecutor and fully supports the work of the Committee mandated by the ASP. However, the controversy surrounding the release of the Committee's report, allegations of backroom dealing or favouritism, and the complete lack of transparency on the names of other candidates that had been vetted and included in the long-list serve neither the cause of transparency nor the legitimacy of the process. Ultimately, it is damaging to the four short-listed candidates, who are evidently qualified and competent, but whose selection process is now marred with controversy,” said Alison Smith, Director of the International Criminal Justice Program, No Peace Without Justice.

The process of electing judges has undergone some important changes as well. The ACN has accordingly produced a more thorough assessment in line with its new mandate, and the ASP will organize roundtables with judicial candidates for the first time. Previously, the Coalition for the ICC organized these roundtables. CICC members had identified challenges in the previous election procedures and had advocated for improvements. The process may be furthered revised following the recommendations recently issued by the Panel of Independent Experts in charge of reviewing the performance of the ICC. 

More information on the ICC and ASP elections and related developments can be found on the CICC website. For further information, please contact Mr Matteo Tonella, Program Associate, CICC Secretariat (Tonella@coalitionfortheicc.org