International Criminal Court: Required and Recommended Qualifications for ICC Judges

We have seen that six of the 18 judges of the International Criminal Court (ICC) will be elected this December by its Assembly of States Parties. The requirements for equitable geographical and gender balance of the Court and for representation of the principal legal systems in the world have been discussed.[1]

Now we examine the more fascinating subject of the required and recommended personal qualifications for these judgeships.

The Rome Statute sets forth the following necessary personal qualifications:[2]

• High moral character;
• Impartiality;
• Integrity;
• Possessing the qualifications required by their States for appointment to their highest judicial offices;
• Excellent knowledge of the Court’s two “working languages” (English and French) and fluency in at least one of these languages;
• Established competency in either (a) “criminal law and procedure, and the necessary relevant experience, whether as judge, prosecutor, advocate or in similar capacity, in criminal proceedings” (the List A candidates) or (b) “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” (the List B candidates);[3] and
• At least some of the judges need to have “legal expertise on specific issues, including, but not limited to, violence against women or children.”[4]

• Substantial experience in criminal trials. This really is an emphasis of the statutory requirement that the List A judges have “experience, whether as judge, prosecutor, advocate or in similar capacity, in criminal proceedings.” Thus, Human Rights Watch suggests that at least five of the six new judges come from the A List candidates.
• The capacity and willingness to meet the demands of adjudicating cases over a nine-year term. The new judges, it is suggested, must “possess the capacity (including stamina) and motivation to meet the many demands on [ICC] judges . . . over a full nine-year term.” In other words, the ICC judgeships are not sinecures to reward distinguished national judges at the end of their careers.
• Commitment to ongoing training. The new judges should “value continuing legal education and . . . [be] willing to participate in initiatives [to promote] . . . legal innovation and coordination among all judicial chambers [of the Court] in adjudicating complex questions relating to law and policy.”

Implicit in the recommendations by Human Rights Watch is the need for the ICC continually to find ways to improve its efficiency, i.e., its ability to dispose of cases expeditiously. The same challenge faces the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY) in their final months, as was discussed at a recent U.N. Security council meeting.[6] Specific suggested changes for improving ICC efficiency have been put forward by one of the six ICC judges to be replaced in this election, Judge Fulford from the U.K.[7] Another set of such recommendations recently has been advanced by the War Crimes Research Office at American University’s Washington College of Law.[8]

I concur in the Human Rights Watch suggested qualifications, but believe that greater emphasis needs to be placed on the importance of electing new ICC judges with previous international criminal law experience. There are important differences between domestic and international criminal trials, and there is now a group of former judges, prosecutors and advocates who already have had such international experience at the ICC, ICTR, ICTY and other similar tribunals. To use a U.S. baseball analogy, look for major league free agents in addition to finding capable minor leaguers to promote to the big leagues. It is encouraging that all four of the first nominees have such international experience.[9]

The importance of this judicial election also had been recognized by the International Coalition for the International Criminal Court. It has called for the nomination of the most highly-qualified jurists for these positions.[10] In addition, the Coalition has established the Independent Panel on ICC Judicial Elections. This Panel was charged with providing “an independent assessment of whether each judicial candidate fulfills the qualifications established by Article 36 of the Rome Statute.” The five Panel members are all distinguished people with international legal experience.[11]

Just this year the ICC has been asked to shoulder more burdens with the U.N. Security Council’s referral of the current situation in Libya to the ICC.[12] Thus, it is critically important to the world for the ICC to be strengthened in every way, including the election of six fully qualified new judges.