International Criminal Court: New States Parties, Judges and Prosecutor

By the end of this year the International Criminal Court (ICC) will have at least five new States Parties to its Rome Statute, six new judges and a new Prosecutor.

New States Parties. So far this year two additional African states (Tunisia and Cape Verde), two additional Asian states (Maldives and Philippines) and one Latin American/Caribbean state (Grenada) have joined the ICC.[1] The following shows the current geographical makeup of the States Parties to the ICC’s Rome Statute:

 ICC States Parties?

 New Judges. This December at a meeting at the U.N. the States Parties will elect six new judges of the Court. The statutory criteria for these positions are the following:[9]

• 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);[10] 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.”

Nineteen individuals have been nominated for these positions; 16 were the List A candidates while 3 were List B. All of them were evaluated by the Independent Panel on ICC Judicial Elections which found that three of the 16 List A candidates were unqualified for lack of criminal law experience while one of the three List B candidates was unqualified for lack of experience in humanitarian law or human rights.[11] The following 15 were found to be qualified:

Observers have criticized these candidates as lacking substantial international reputations of excellence.[12]

The Independent Panel also made suggestions for improving the Court’s judicial selection process. Nominating governments should provide a description of their nomination process and should be promptly notified of any missing information in the nomination papers. The Assembly of States Parties (ASP) should advise nominating governments whether nominees may continue professional activities that might create conflicts of interest if they are elected. The ASP also should consider (i) what to do if there are two judges from the same country as a result of some current judges continuing in office past the term to complete court business; (ii) whether there should be a practice of not nominating candidates who would exceed a certain age or who were not in good health if they were to serve their full nine-year term; (iii) establishing a code of conduct for candidates; and (iv) establishing an advisory committee on judicial nominations.[13]

New Prosecutor. This December at a meeting at the U.N. the States Parties will elect by consensus a new Prosecutor of the Court, and consensus is expected to be reached by November 28th. Four individuals have been recommended for this position by the Search Committee, and the New York Times reports that the favorite is Mrs. Fatou Bensouda, the current Deputy Prosecutor for the Court. She clearly has the most extensive and most recent experience in the Office of the Prosecutor, a very valuable credential.[14] She also is an African, and there is a lot of pressure from the African States Parties to select an African for this position since all of the initial investigations and prosecutions come from Africa. The fact that she is a woman is also seen by many as important.[15]