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. 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:
- High moral character;
- 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); 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. The following 15 were found to be qualified:
|1.||BANKOLE THOMPSON, Rosolu John (Sierra Leone)|
|2.||BOOLELL, Vinod (Mauritius)|
|3.||BRIA, Modeste-Martineau (Central African Republic)|
|4.||CARMONA, Anthony Thomas Acquinas (Trinidad and Tobago)|
|5.||CATHALA, Bruno (France)|
|6.||CIFUENTES MUÑOZ, Eduardo (Colombia)|
|7.||EBOE-OSUJI, Chile (Nigeria)|
|8.||FREMR, Robert (Czech Republic)|
|9.||HERRERA CARBUCCIA, Olga Venecia (Dominican Republic)|
|10.||KAM, Gberdao Gustave (Burkina Faso)|
|11.||MINDUA, Antoine Kesia-Mbe (Democratic Republic of the Congo)|
|12.||MORRISON, Howard (United Kingdom)|
|13.||NOUHOU, Hamani Mounkaila (Niger)|
|1.||CZAPLIŃSKI, Wladyslaw (Poland)|
|2.||DEFENSOR-SANTIAGO, Miriam (Philippines)|
Observers have criticized these candidates as lacking substantial international reputations of excellence.
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.
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. 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.
 ICC, States Parties to the Rome Statute, www2.icc-cpi.int/Menus/ASP/states+parties.
 The principal African states that are notICC members are Algeria, Angola, Eritrea, Ethiopia, Libya, Rwanda, Somalia, Sudan and Zimbabwe. (Compare id. with U.N., List of Member States of United Nations,http://www.un.org/en/members/index.shtml.
 The principal Asian states that are not ICC members are China, Democratic Republic of Korea, India, Indonesia, Iran, Malaysia, Myanmar, Pakistan, Thailand and Viet Nam. Id.
 The principal European states that are not ICC members are Belarus, the Russian Federation and Ukraine. Id.
 The principal Latin American and Caribbean states that are not ICC members are Cuba, El Salvador, Guatemala and Nicaragua. Id.
 The only Middle Eastern states that are ICC members are Cyprus and Jordan. Id.
 Canada is the only North American state that is an ICC member. The U.S.A. is the only North American state that is not an ICC member. Id.
 There are 192 members of the U.N., and a non-member of the U.N. (Cook Islands) is an ICC State Party. Thus, the total number of states in the table is 193. Id.
 Rome Statute, Arts. 36(3), 38(8)(b), 50(2); Post: International Criminal Court: Basics of Its Upcoming Judicial Election (June 23, 2011); Post: International Criminal Court: Required and Recommended Qualifications for ICC Judges (June 24, 2011).
 List A judges are supposed to be at least nine in number; the List B judges, at least five. (Rome Statute, Art. 36(5).) All six of the retiring judges came from the A List. Of the six to be elected this December at least two must come from the A List while no one has to be from the B List. (See Post: The International Criminal Court: Basics of Its Upcoming Judicial Elections (June 23, 2011).)
 ICC, Election of six judges–December 2011 (Oct. 14, 2011), www2.icccpi.int/Menus/ASP/Elections /Judges/ 2011/2011.htm; Independent Panel on ICC Judicial Elections, Report on International Criminal Court Judicial Nominations 2011 (Oct. 26, 2011), http://www.iccindependentpanel.org/sites/default/ files/ Independent%20Panel%20on%20ICC%20Judicial%20Elections%20-%20Report%2026%20October%202011.pdf [Independent Panel Report]; Van Schaack, Independent Panel on ICC Judicial Elections, IntLawGrrls (Nov. 1, 2011);
 Binham, The Hague struggles to find judges, Fin. Times (Sept. 14, 2011); Amann, How to deepen shallow ICC judges pool, IntLawGrrls (Sept. 19, 2011).
 Independent Panel Report.
 Post: International Criminal Court: Its Upcoming Prosecutor Election (June 25, 2011); Post: International Criminal Court: Four People Recommended for Election as ICC Prosecutor (Oct. 25, 2011). Mrs. Bensouda recently made a presentation about lessons learned in the ICC’s first trial. (Bensouda, Update on Trials and the Closing of the First Case (Oct. 5, 2011), www2.icc-cpi.int/nr/exeres/2386f5cb-b2a5-45dc-b66f-17e762f77b1f.htm; Post: International Criminal Court: Recent Developments in Other ICC Investigations and Cases (Nov. 17, 2011).) Mrs. Bensouda is now in Libya with the Prosecutor to discuss with Libyan officials the sensitive subject of where the two remaining ICC Libyan suspects will be tried. (Comment: ICC Prosecutor and Deputy Prosecutor in Libya To Discuss Future Trials (Nov. 22, 2011).)
 Simons, The Hague: Four Prosecutor Finalists, N.Y. Times (Oct. 26, 2011); Amann, ICC consensus this week?, IntLawGrrls (Nov. 20, 2011).