Public roundtables for judicial candidates: a key step to #ElectTheBest

Jill van Hellemond, Program Intern, CICC Secretariat
From 3 to 6 November 2020, the Assembly of States Parties (ASP) organized public roundtables, or hearings, for judicial candidates to the International Criminal Court (ICC) elections. The judicial roundtables, which exceptionally took place virtually this year because of the COVID-19 pandemic, involved all 20 candidates and offered them the opportunity to introduce themselves and answer questions presented by civil society and States Parties to the Rome Statute.

Judicial roundtables: A unique opportunity for civil society and States to ascertain candidates’ qualifications

The judicial roundtables are an essential step in the process for the election of ICC judges. By offering them a public engagement opportunity, the roundtables both provide judicial candidates with a chance to present themselves and give civil society and States Parties the opportunity to inquire about their qualifications, experience, motivation and future vision for the ICC. 

During the roundtables, ICC States Parties and civil society examine the judicial candidates with a series of questions to determine whether they satisfy the minimum requirements established under Article 36(3) of the Rome Statute: judges must be persons of high moral character, be impartial and honest and possess the qualifications required in their respective States for appointment to the highest judicial offices. 

By raising awareness of the candidate’s qualifications and experience, the judicial roundtables aim to increase the transparency of ICC elections and to strengthen the Court through fair and merit-based election processes.

International civil society organizations have an active and sound history of engagement with the Court, therefore human rights defenders’ participation and public scrutiny is critical for a credible and legitimate process in judicial nominations”, said Olga Guzmán Vergara, Comisión Mexicana de Defensa y Promoción de los Derechos Humanos. 

In the past, the Coalition for the International Criminal Court (CICC) organized the public roundtables with judicial candidates. Since the current electoral round, this key step has been adopted as a part of the formal procedure for the nomination and election of judges, and the ASP accordingly organizes the roundtables.  

 

Civil society monitored the 2020 election process and engaged with judicial candidates 

The Coalition and its members have consistently campaigned to ensure that ICC States Parties nominate and elect only the most highly qualified individuals as ICC officials through fair, transparent and merit-based processes. 

Civil society has always played a critical part in ensuring that hearings are effective and that candidates are considered fairly and equally. This role continues even though States Parties organized the most recent judicial roundtables. With the support of the CICC Secretariat, civil society organizations devised pre-prepared questions to be asked and ways to receive additional live questions during the hearings. Civil society was also invited to co-moderate the hearings together with States Parties; Ms. Mariana Pena of the Open Society Justice Initiative (OSJI) and Mr. Allan Ngari of the Institute for Security Studies (ISS) took up this responsibility.

“Civil society organizations have provided essential support to the ICC over the years. This support extends to the selection process for those who occupy senior positions at the court, such as judges. With a context specific understanding of ICC situation countries, those under preliminary examination and other countries of concern where international crimes are alleged to have been committed, CSO input to the selection process is unmatched. For the judicial roundtable, civil society interventions were aimed at spotlighting the adjudication issues that judges would be faced with at the ICC. The objective of our interventions included, inter alia, an opportunity for candidates to get a glimpse of concerns from the ground where we work and which they will have the privilege of making important decisions about. There is the hope that the questions we asked provided an opportunity for further reflection and etched in the candidates minds so that when the election is complete and they take up office, the ethical, professional practice and culture, collegiality issues we raised, will be beacons in their tenure”, said Allan Ngari, Senior Researcher, Insitute for Security Studies. 

As part of its campaign to #ElectTheBest, civil society had previously asked all judicial candidates to complete questionnaires regarding their vision, background, qualifications, experience and views on international justice and the ICC.  

 

Steps to #ElectTheBest: Public hearings and the Report of the Advisory Committee on Nomination of Judges

The judicial roundtables in 2020 are particularly significant not only because they were organized by States Parties for the first time, but also because they offered an opportunity for States Parties to consider and evaluate the assessment of candidates by the Advisory Committee on the Nomination of Judges (ACN), whose mandate was revised at the last ASP. 

The ACN was created in 2011 to assess candidates in accordance with the minimum requirements established by Article 36(3) of the Rome Statute. Civil society and the CICC actively advocated for the creation of the ACN and have since contributed to the amendment and improvement of its mandate

At the 18th session of ASP in 2019, the Assembly amended and strengthened the mandate of the ACN so it could further assist States Parties in providing a more thorough assessment 

Now, the ACN evaluates candidates based on four different categories (not qualified, only formally qualified, qualified and highly qualified). It is also able to collect a wider set of information, including information on national nomination processes and any other publicly available information on candidates. Furthermore, it developed a common questionnaire and a personal declaration to further examine the candidates’ qualifications. 

“This year´s ACN report demonstrates that the Committee has made significant progress in the implementation of the enlarged mandate authorized by the Assembly of States Parties in 2019. The Committee’s efforts to gather information on judicial candidates was more through, and the report was more clear, detailed and nuanced. While the ACN can further improve its methodology, this year’s performance is an solid starting point.” Mariana Pena, Senior Legal Officer, Open Society Justice Initiative.

In August and September 2020, the ACN met to evaluate the candidates and issued its report on 30 September 2020. Members of the CICC have called on States Parties to carefully take into consideration and be guided by the conclusions of the ACN report

Next steps for judicial elections and possible amendments to the process

The current process for the election of ICC judges assumes a special importance in light of the recommendations issued by a group of Independent Experts who were mandate to carry out a Review of the ICC. In the Independent Expert Review (IER) Report, issued on 30 September 2020, contains recommendations on how to improve the procedure for the future nomination and election of ICC judges. 

The IER Report recommends that the ASP harmonize States Parties’ national nominations procedures for the appointment of ICC judges by soliciting and sharing information and commentary from States on their respective processes. The IER Report further recommends that individual interviews and the public roundtables require the participation of candidates. 

Most importantly, the IER Report recommends a reconsideration of the current division of candidates into List A—candidates with competence in criminal law and the relevant experience in criminal proceedings—and List B—candidates with competences in international law and experience in professional legal capacity—in view of the courtroom expertise necessary to conduct war crimes trials. 

As a matter of concern, the IER Report also highlights the “significant role that politics can play in the election of Judges.” The Coalition and its members strongly call upon State Parties to avoid political considerations in the upcoming election and to nominate and elect only the most highly qualified candidates in fair and merit-based election processes.