18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE
Day 2 (3 December 2019)
Name of the Event: Raising the Bar – improving the nomination and election of judges to the international criminal court (Side Event co-hosted by South Africa, Uruguay, and the Open Society Justice Initiative (OSJI)).
Overview by: Hester Dek, Intern PILPG-NL
Main Highlights:
James Goldston emphasized that qualifications should be more important than the campaign during the election process.
Judge Ekaterina Trendafilova underlined the importance of judicial education: “if cases are in the hands of judges who do not know how to handle evidence, the outcome will never work”.
Alejandra Vicente noted that the ICC is doing better at gender parity than most UN bodies, the ICJ, and some regional human rights courts, however progress is not always sustained.
Summary of the Event:
“This debate is quite belated, it was due a long time ago”
This side event was organized in the wake of the latest report by the Open Society Justice Initiative (OSJI) “Raising the Bar: Improving the Nomination and Selection of Judges at the International Criminal Court”. The panel consisted of James Goldston (Executive Director OSJI), Judge Ekaterina Trendafilova (President, Kosovo Specialist Chambers), Niels Blokker (Professor of International Institutional Law, Leiden University), and Alejandra Vicente (GQual Secretariat member and Head of Law, REDRESS). The event was chaired by Angela Mudukuti (Senior International Criminal Justice Lawyer, Wayamo Foundation).
James Goldston commenced by discussing the report and emphasizing that until now candidates with the strongest campaigns, rather than the strongest qualifications, have proven most likely to win.
Judge Ekaterina Trendafilova continued the discussion by stressing the importance of judicial education, questioning how one could handle difficult legal matters without sufficient knowledge of the law, as parties are always testing the competence of the judges. “Unless we turn ourselves inside to see what we can do to improve the way judges do their job, we are not going to improve the perception of an outsider of the ICC”. She stressed that “this debate is very much belated, it was due a long time ago”. She highlighted the importance of judges being educated consistently: “if cases are in the hands of judges who do not know how to handle evidence, the outcome will never work”.
Thereafter, Niels Blokker reflected on the question “how typical is the ICC in how the judges are nominated and elected based on your research?”. According to Blokker, there is no prototype, each tribunal is unique. He emphasized the strong presence of civil society at the ICC. According to him, there isn’t enough research on the governance of international tribunals.
Next, Alejandra Vicente discussed the importance of gender parity in tribunals, treaty bodies, and special procedures. She explained that this aim is recognized in treaties, yet it is hardly realised in tribunals. She noted that many countries have only nominated men, using otherwise opaque nomination procedures. On this point of gender parity, Judge Trendafilova pointed out, however, that while gender parity is very important, eventually “you want to be chosen based on your qualifications, not your gender.”
In assessing gender parity at the ICC, Ms. Vicente responded that the ICC is doing better than most UN bodies such as the ICJ, and some regional human rights courts. If a state wants a chance, they need to nominate women: “it does not allow states to get away with the argument ‘there are no qualified women available in my country’”. She stressed that progress should be more sustained.
Mr. Goldston then referred to the recommendation of the report that states ensure transparent, merit-based nomination processes. Besides that, he highlighted the equitable gender representation, the importance of asking nominees to demonstrate evidence of their legal knowledge, and the need to check fact-check their credentials.
Lastly, the floor was opened for questions and comments. Questions were raised regarding remuneration for judges, employment security for judges, the requirement of high moral character, and judicial collegiality. On the first question, Mr. Goldstone answered that the issue of remuneration is not a priority at this point. On the question of high moral character, Ms. Vicente responded that previous cases of harassment should be taken into account in the nomination process. Finally, collegiality was said to be important, but with full respect for the independence of the judge.