Wednesday, March 16, 2011

Major Staff Turnover Anticipated at the ICC

The ICC is poised to experience a major turnover in its professional staff in 2012. These upcoming elections and appointments will constitute the most significant and dramatic changes in the ICC's leadership corps since the inaugural elections in 2003.
On the judicial side: the terms of six of the Court's 18 judges (depicted above) will expire next year. (The ICC Statute staggered the terms of office of the first batch of judges so that one third would serve 9 year terms. It is this group of judges whose terms are now ending.) The nomination period for the open positions shall run from June 13 to September 2, 2011. Candidates will be elected at the tenth session of the Assembly of States Parties (ASP) (December 12-21, 2011) to be held at United Nations Headquarters. The Court also needs a new President and new Vice Presidents. This radical overhaul of the bench will come just as the first trials before the Court are coming to a close and the ad hoc tribunals are shutting their doors.
The Judicial Division is composed of 18 judges in three divisions. The Pre-Trial Division is composed of 6 judges. Some of the responsibilities of the Division are carried out by two Pre-Trial Chambers of 3 judges each or by a single judge. As the name implies, the Pre-Trial Division carries out a number of functions prior to the initiation of trial:

  • authorizing the prosecutor's proprio motu investigation,
  • ruling on admissibility challenges, including on complementarity and gravity grounds,
  • reviewing decisions by the prosecutor not to proceed in the event of the referral of a situation,
  • upholding the rights of the accused and protecting victims and witnesses in the investigative phase,
  • authorizing investigations on the territories of states parties,
  • issuing warrants for arrest,
  • confirming the charges against an accused, and
  • (eventually) serving as a filter to charges of aggression (if the ASP decides to activate the aggression amendments in 2017).

The Trial Division, composed of 8 judges with criminal law experience, is charged with conducting fair and expeditious trials to determine the individual responsibility, vel non, of the accused and to award any reparations due to the victims. Finally, the Appeals Division, consisting of the President of the Court and four other judges, is responsible for adjudicating any appeals emerging from the Pre-Trial Division or the Trial Division.
Among those ICC judges whose terms are ending are three women:
Fatoumata Dembélé Diarra of Mali, the First Vice President of the Court and a member of the Trial Division (above right), Elizabeth Odio Benito of Costa Rica and a member of the Trial Division (immediate right), and Sylvia Steiner of Brazil, who is a member of the Pre-Trial Division (above left).
The current prosecutor's term ends in June 2012, and the ASP has established a representative search committee to find his replacement pursuant to the same schedule as the judicial elections. The Committee is being coordinated by H.R.H. Zeid Ra’ad Zeid al-Hussein, Permanent Representative of Jordan to the United Nations. The Committee hopes to have a short list of candidates by the end of this summer.
As they consider their nominations, the ASP will do well to recall the qualifications of judges and the prosecutor, which are set forth in part in Articles 36 and 42 of the ICC Statute, respectively. In particular, Article 36(8)(a) directs the ASP to in the selection of judges, to
take into account the need, within the membership of the Court, for: ... (iii) A fair representation of female and male judges.

Not surprisingly, NGOs are calling for a merits-based set of nominations rather than politicized vote-trading. To this end, the Coalition for an ICC has created a high-level expert panel to assess the candidates put forward by States Parties. See here for more on this campaign. (Diane's prior post on the CICC panel convened to vet judicial candidates is here.)
The ASP is going to experience an overhaul as well, with the election of new members of the Bureau (the executive committee of the ASP), a new President, and 6 new members for the Committee of Budget and Finance. (Ambassador Simona Mirela Miculescu (left), Permanent Representative of Romania to the United Nations, recently assumed the position of Vice-President of the Assembly).
The crime of aggression will likely become operational during the terms of office of this group. (The ASP can make a decision as early as 2017 to activate the Court's jurisdiction over the crime). No doubt this too will impact states parties' choices of candidates as it is these individuals who must be trusted to adjudicate this new and controversial crime.
Stay tuned...

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