Tuesday, November 1, 2011

Independent Panel on ICC Judicial Elections

The Independent Panel on ICC Judicial Elections, about which we've blogged before (here, here and here), has recently issued a statement and report on the upcoming elections for new judges for the International Criminal Court. Richard Goldstone chairs the panel, aided by IntLawGrrls alumna Patricia Wald as Vice-Chair. (credit for photo of ICC headquarters at The Hague)
The Independent Panel, which is composed of international law and judicial experts from around the world from both civil and common law systems, assessed judicial candidates for the ICC based on the requirements of the Rome Statute. A creature of the NGO Coalition for the International Criminal Court (CICC), the Panel's goal is to provide an independent assessment of whether each judicial candidate fulfils the qualifications prescribed by Article 36 of the Rome Statute. Most importantly, this provision provides that:

(a) The 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.

(b) Every candidate for election to the Court shall:

(i) Have established competence in criminal law and procedure, and the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings [List A]; or

(ii) Have established competence in relevant areas of international law such as international humanitarian law and the law of human rights, and extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court [List B]...

The provision also aims to ensure geographic and equitable gender representation. On the latter criteria, we noted earlier that no women were originally nominated for a spot on the ICC bench. Moreover, there were very few individuals designated as qualified pursuant to List B. In the final list of nominations, two women appear:

In terms of the Report's conclusions, it is clear that this Panel was not destined to be a rubber stamp. The Panel sought additional information where candidate dossiers were incomplete and reviewed outside information in addition to the materials provided by the Assembly of State Parties (ASP) Secretariat and the CICC (including a detailed questionnaire). On the basis of this work, they reached the following conclusions:

Qualified List A:
Rosolu John Bankole Thompson (Sierra Leone)
Vinod Boolell (Mauritius)
Modeste-Martineau Bria (Central African Republic)
Bruno Cathala (France)
Eduardo Cifuentes Munoz (Colombia)
Chile Eboe-Osuji (Nigeria)
Robert Fremr (Czech Republic)
Olga Venecia Herrera Carbuccia (Dominican Republic)
Antoine Kesia-Mbe Mindua (Democratic Republic of Congo)
Howard Morrison (United Kingdom)
Hamani Mounkaila Nouhou (Niger)

Qualified List B:
Wladyslaw Czaplinski (Poland)
Miriam Defensor-Santiago (Philippines)

Ajmi Bel Haj Hamouda (Tunisia) - List A (for lack of necessary relevant experience in criminal law proceedings)
Javier Laynez Potisek (Mexico) - List A (for lack of direct professional experience in criminal law)
George A. Serghides (Cyprus) - List A (for lack of the necessary relevant experience in criminal law proceedings)
Jorge Antonio Urbina Ortega (Costa Rica) - List B (for lack of experience in either humanitarian law or human rights)
All the dossiers can be found here.
In reaching these conclusions, the Panel made clear:

The Panel does not endorse, oppose or rank candidates. The Panel's determination of 'Qualified' or 'Not Qualified' for each candidate is based strictly on the requirements of the Rome Statute.

The Panel also made a number of important suggestions regarding the nomination process, such as that the Assembly of States Parties:

  • work with governments to ensure that their nomination packets are complete and comply with the Statute
  • consider what to do about potential conflicts of interest involving elected judges who are not immediately called for service
  • address the legal and policy questions around the fact that there maybe two judges of the same nationality on the bench if outgoing judges are retained for continuing proceedings
  • consider utilizing age restrictions or health assessments to ensure that candidates will be able to serve their full terms
  • adopt a voluntary code of conduct for ICC judges to ensure they do not make remarks in public about legal issues on which they may be required to rule
  • establish its own internal expert Panel to vet candidates

Our colleague Bill Schabas adopts a critical stance toward the results, arguing that the review was too mechanistic and formulaic. He also takes issue with the conclusion that Judge Bankole Thompson, a judge on the Special Court for Sierra Leone, is "qualified" in light of his dissent in the CDF case (beginning at p. 21339 here, and continuing here). In it, he conflated the jus ad bellum and the jus in bello to argue that members of the goverment-supported Civil Defence Forces should be exonerated, not withstanding their involvement in international crimes, in light of the fact that they were fighting a "just war." Under the circumstances, Professor Schabas would choose the Cypriot family law judge over someone "with such a misguided view of personal responsibility for atrocity crimes."
The elections to fill the 6 open spots are scheduled to take place during the next meeting of the Assembly of States Parties, December 12-21, 2011, in New York. It promises to be interesting ...


atty_BK said...

It is truly very good news that two women appear in the list of qualified candidates,
Defensor Santiago (Philippines) in List B; and
Carbuccia (Dominican Republic) in List A.
Defensor Santiago is the only Asian left after the independent panel report disqualified Cyprus and seems to be a favorite among many law blogs.
We ferevently hope that these 2 women qualified candidates would bring integrity, fairness and impartiality to trials in the ICC, especially those involving gender justice in systematic and massive crimes of rape, sexual violence, persecution and extermination. We are rooting for them ! GO !!!!

atty_BK said...

Theres only one Asian left, Miriam Defensor Santiago of the Philippines, after the candidate from Cyprus was disqualified. In order to maintain geographic balance, this woman has to win ! Its hard to imagine election of judges without an Asian.

mgt said...

The CV of the candidate from Cyprus was replete with experience in family relations. Whats that got to do with the ICC ? At any rate, the candidates did not have a hand in manipulating the independent panel report. Certainly, Schabas is no match to any of the esteemed judges of the independent assesesment panel - Goldstone, Wald, Quiroga. Next time, he should try to squeeze himself in if he wants his own assessment to be heard. Gladly, no one pays heed. Family relations vs. human rights expertise with experience as judge and several awards at that ? I wouldnt be surprised if Schabas chooses a corporate law practitioner for the ICC or one lets say who has a long and lengthy experience in divorce and custody proceedings.