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?

  Yes No Total
Africa[2]    33 14   47
Asia[3]    17 35   52
Europe[4]    40   4   44
Latin America/Caribbean[5]    26   7   33
Middle East[6]      2 13   15
North America[7]      1   1     2
TOTAL[8] 119 74 193

 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:

List A


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)

List B


1. CZAPLIŃSKI, Wladyslaw (Poland)
2. DEFENSOR-SANTIAGO, Miriam (Philippines)

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]


[1] ICC, States Parties to the Rome Statute, www2.icc-cpi.int/Menus/ASP/states+parties.

[2] 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.

[3] 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.

[4] The principal European states that are not ICC members are Belarus, the Russian Federation and Ukraine. Id.

[5]  The principal Latin American and Caribbean states that are not ICC members are Cuba, El Salvador, Guatemala and Nicaragua.  Id.

[6]  The only Middle Eastern states that are ICC members are Cyprus and Jordan.  Id.

[7]  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.

[8]  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.

[9] 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).

[10] 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).)

[11] 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);

[12] Binham, The Hague struggles to find judges, Fin. Times (Sept. 14, 2011); Amann, How to deepen shallow ICC judges pool, IntLawGrrls (Sept. 19, 2011).

[13] Independent Panel Report.

[14] 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).)

[15] Simons, The Hague: Four Prosecutor Finalists, N.Y. Times (Oct. 26, 2011); Amann, ICC consensus this week?, IntLawGrrls (Nov. 20, 2011).

International Criminal Court: ICC’s First Trial To End This Week

International Criminal Court

This Thursday and Friday (August 25th and 26th), the Trial Chamber of the International Criminal Court (ICC) will hear closing arguments in its first trial. Thereafter in due course the Chamber will issue its decision. The trial started in January 2009, and the evidence phase concluded in May 2011 after 220 days of hearing of testimony from 62 witnesses, including four experts called by the Trial Chamber itself. The Trail Chamber issued 307 oral decisions and 624 written decisions.[1]

The accused in this trial is Thomas Lubanga Dyilo. He is the alleged founder and leader of UPC (Union des patriots congolais). He is charged with war crimes consisting of enlisting and conscripting children under the age of 15 years and using them in hostilities in the Democratic Republic of the Congo (DRC).[2]

In another ICC development, Grenada on August 1st became the 115th State Party to the ICC’s Rome Statute.[3]


[1] ICC Press Release, Trial of Thomas Lubanga Dyilo: The presentation of evidence stage is closed (May 20, 2011); Reuters, ICC’s Landmark Debut Trial Concludes After Two Years, N.Y. Times (Aug. 24, 2011).

[2] See Post: International Criminal Court: Introduction (April 28, 2011); Post: International Criminal Court: Investigations and Prosecutions (April 28, 2011); Post: International Criminal Court: Protection of Witnesses (Aug. 19,2011).

[3]  ICC Press Release, ICC welcomes Grenada as a new State Party (Aug. 23, 2011).

The International Criminal Court: Prosecutor Seeks To Open Investigation of Ivory Coast

On May 19, 2011, the ICC Prosecutor advised the President of the Court of a forthcoming application to the Pre-Trial Chamber for authorization of an investigation by the Office of the Prosecutor into the situation in the Ivory Coast (Côte d’Ivoire) since November 28, 2010.[1]

After a preliminary examination, the ICC Prosecutor concluded that there is a reasonable basis to believe that crimes within the jurisdiction of the Court have been committed in Côte d’Ivoire since that date.[2]

Ivory Coast once was one of Africa’s richest, but has been devastated by years of unrest, political division and civil war. The country is still reeling from a four-month armed standoff that killed as many as 3,000 people and that sent tens of thousands of refugees fleeing violence into neighboring lands.[3]

On May 21, Alassane Ouattara was formally inaugurated as the country’s president nearly six weeks after his predecessor was forcibly removed from office with the help of French and United Nations military strikes when he refused to leave office after losing the presidential election.[4]

Also last week Grenada became the 115th state to join the ICC.[5]


[1] ICC, Press Release: Situation in [Ivory Cost] assigned to Pre-Trial Chamber (May 20, 2011).

[2]  Id.

[3]  E.g., Nossiter, In Belated Inauguration, Ivory Coast’s President Urges Unity (May 21, 2011); Times Topic, Ivory Coast, http://topics.nytimes.com/top/news/international/countriesandterritories/ivorycoast/index.html?scp=1-spot&sq=ivory%20coast&st=cse.

[4]  Id.

[5] ICC, Press Release: Grenada becomes the 115th State to join the Rome Statute (May 20, 2011).