At the invitation of the Coalition for the International Criminal Court, a prestigious panel has assessed the current list of candidates for judicial office at the Court with a view ‘to encourag[ing] States Parties to nominate the most qualified candidates to be judges of the International Criminal Court’. The report published earlier this week describes most of them as ‘qualified’ without further comment, but the panel expresses reservations about four of them. Although the idea of such an assessment is good, I’m not convinced that the exercise is all that helpful or constructive.
The approach is quite mechanistic. The panel examines the cv’s and other documents submitted with the nomination to see if the formal requirements of article 36 of the Rome Statute are met. For example, three of the candidates proposed on list A (substantial involvement in criminal proceedings) are rejected. According to the panel, ‘this requires courtroom experience, including experience in criminal trials or appeals proceedings, of at least several years and that such experience should have been a substantial and more than peripheral part of the occupation of the candidate; membership in bar associations and occasional appearances in criminal proceedings do not suffice.’
The Tunisian candidate was declared not qualified on this basis. The panel acknowledged that although he ‘has extensive expertise in criminal law, including international criminal law, and is engaged in academic activities and professional societies relating to criminal law, the materials reviewed by the Panel, including extensive writings accompanying the candidate’s CICC judicial questionnaire, do not indicate that the candidate’s practice substantially involved criminal proceedings’. The Mexican candidate had a similar fate. The panel wrote that he ‘possesses extensive experience in government service, such as in dealing with matters related to criminal law and procedure, including extradition and criminal law policy issues. As Deputy Prosecutor of Legal and International Affairs in the Office of the Attorney General of Mexico, the candidate advocated on behalf of the Government of Mexico in a case involving the diversion and recovery of public funds. The Panel finds, however, that the candidate did not have substantial direct involvement in criminal proceedings.’ And finally, the Cypriot candidate was a practicing lawyer for five years and a family court judge for twenty-years.
As for List B (international law), the panel found the candidate from Costa Rica to be not qualified. It noted that he had ‘an extensive career as a diplomat working in fields such as international peace and security, both in the context of the United Nations and his own government. The candidate was educated in the field of law, and studied toward degrees in the law of international cooperation as well as politics. The Panel also notes that the candidate has been a professor of international relations. Absent from the candidate’s professional and academic background, however, is established competence in the specific areas of international law relevant to the judicial work of the Court such as international humanitarian law and the law of human rights.’
Many of the judges already elected to the Court in previous elections might not qualify according to these rigorous standards.
The panel has adopted a rather strict construction of article 36 which sets out the criteria for qualification of judges. This is unfortunate, because the rather detailed terms of article 36 can have the consequence of excluding well-qualified candidates. What we require at the Court are wise, sensible and fair-minded individuals. That should be the focus of any assessment of qualifications. Unfortunately, with its focus on these rather bureaucratic details, the panel spots the trees but misses the forest.
It might, instead, have considered the judicial record of some of the candidates. For example, the first candidate on the list, judge Bankole Thompson, was declared qualified. He has already served on the Special Court for Sierra Leone. I would not say his record was particularly distinguished. In the final trial judgment in the ‘CDF case’, he dissented, voting to acquit two men charged with responsibility for terrible atrocities not because they were not involved in the acts in a factual sense but because the judge considered they were defending a democratically elected government and this offered them a full defence. This absurd suggestion no doubt went over rather well with the Government of Sierra Leone, which seems to have rewarded him with their nomination to the International Criminal Court. Shouldn’t the panel have warned members of the Assembly of States Parties of concerns about this man’s fitness to serve? But on paper according to the terms of article 36, he ticks all the boxes so the panel finds him to be ‘qualified’.
I'd take a judge with twenty-two years of experience, even if it was in family law cases, over an individual with such a misguided view of personal responsibility for atrocity crimes.
The Panel notes that the Rome Statute places no limit on the age of judicial candidates and does not impose a mandatory retirement age. There is a study, appended to the panel’s report, showing that most states do this for senior judicial office. Accordingly, ‘The Panel suggests that the ASP or its Advisory Committee on nominations consider this issue with a possible goal of developing a practice whereby States Parties would not nominate candidates who would reach a certain maximum age during the course of their elected terms.’
This is a plainly discriminatory comment that, moreover, flies in the face of evidence that quite elderly judges serve international criminal justice with great distinction. I think of two of our greatest international judges, who sat into their eighties: Mohamed Shahabbuddeen and Theodor Meron. Judge Meron is still working away at the International Criminal Tribunal for the former Yugoslavia, contributing to its activities with his immense wisdom and experience. Judge Li, who was in the famous Tadic Jurisdictional Decision, was more than ninety.
An age limit, even if imposed only informally is a bad idea. This, too, is a bureaucratic attempt to address problems of qualification of judges. Moreover, the fact that many states have archaic legislation imposing age limits is not a good argument for extending this to the International Criminal Court. Everywhere, retirement ages are being increased to take account of greatly extended human longevity. Policies that fail to adjust to this are quite plainly discriminatory, and contrary to fundamental human rights principles.
Judges should be assessed individually and not according to a formula, whether it is based upon age or professional experience. Many of our best judges would fail the tests proposed by the panel in this report.