AMICC attends constructively the panel discussions
with ICC judicial candidates in anticipation of the eighth judicial elections
in December 2014
Thursday 11th Sept- Friday 12th
Sept 2014
New York, UN Headquarters
Since 2010, the NGO Coalition for the ICC has
appointed an independent high expert panel on the ICC’s judicial elections in
order to educate and promote ICC’s best qualified nominations with the aim to
fulfill and fully accomplish art. 36 par 3 of the R.S.
The Panel is composed of esteemed international law
experts, representing legal systems from the five geographical regions
recognized at the United Nations as well as both civil law and common law
systems, and who have been appointed to renewable three year term, and its main
goal is to assess strictly the qualifications that the ICC treaty requires, and
look carefully at the nominating documents submitted by governments to
determine whether a candidate is either ‘qualified’.
The provision included in art.36 of the Statute, in
fact,, requires each candidate to be impartial, qualified, and of moral
character and provides, among other things, the ASP with the possibility to
establish an Advisory Committee on nomination par.3(c), in order to guarantee
that candidates’ backgrounds and experience meet the requirements set in the
Statute.
The committee should facilitate the election of the
highest qualified individuals as judges of the ICC and the Coalition along with
AMICC has been tried to support its work in occasion of the sixth and seventh
elections.
Furthermore, the independent panel appointed by the
Coalition, has been trying to enhance and promote transparency and
accountability of the judicial nominations and elections by launching a
campaign ICC/ASP judicial elections whose results have been without any doubts
successful.
Statistical data, such as the progressive reductions
in the number of nominees, show how the experiences and expertise of States
candidates have improved as well as their qualifications and competences,
reaffirming principles enshrined in the Rome Statute and in other legal
instruments.
One difficult challenge concerning States’ judicial
candidacy is represented by the so-called “vote-trading ” practice existing
among Member States Parties to the RS.
States’ political
parties and regional groups often put in force a series of political agreements
in order to choose judicial candidates.
By raising the level of expertise and transparency
of the candidates, the Coalition and other NGOs aim to oppose to this practice
which jeopardizes the transparency and accountability of the candidates.
The panel as well as the Coalition in fact has tried
to involve the public opinion, NGOs and Human rights activists in order to
publicize and raise awareness on the elections procedure and candidates. The
method used is intended to be transparent and objective and it has been proven
to be effective as shown by this last eight election campaign.
Each nominee is asked to fill out questionnaires that
provide additional information about the candidates’ qualifications. The
Coalition interviews all candidates, holds public seminars with available
candidates and experts, and hosts public debates.
In occasion of the 8th election which
will take place in December 2014 at the 13th Assembly of States Parties,(8-17
December 2014), seventeen countries have chosen candidates for the December
elections to fill six vacant positions on the Court’s bench.
According to
the Rome statutes, (art. 36 par.6, a) the ASP will elect those judges who
obtain the highest number of votes with at least a two-thirds majority of
states parties present and voting from a pool of nominated candidates.
Candidates shall have established competence in
criminal law and procedure and necessary relevant experience in criminal
proceedings (list A candidates) or established competence in relevant areas of
international law and extensive practical experience in a professional legal
capacity (list B candidates).(art.36 par.3)
States parties must also take into account the
representation of the principal legal systems of the world, equitable
geographical representation, a fair representation of female and male judges,
and judges with legal expertise on specific issues including, but not limited
to, violence against children or women.(art.36 par.8 a and b)
According to the Status of nomination for the
election of six judges (as at 4 August 2014),
The minimum voting requirements are: 2 for List B, 2
for Eastern-European States, 1 for Asia-Pacific States and 1 for male
candidates.
Each nominee replied to a questionnaire prepared by
the Coalition taking into account relevant criteria and principles of ICL
consistent perfectly with the RS and the ICL legal framework.
A set of twenty questions divided into ten different
topics works as a useful and functioning filter to test States’ candidacy.
The questionnaire includes the following questions,
reflecting ICC statutory provisions.
Background:
1. Why do you wish to be elected a judge the ICC?
2. What do you believe are some of the major challenges currently facing the
Court? What do you believe
will be some
of the major challenges in the coming years?
Nomination
process
3. What are the qualifications required in the State of which you are a
national for appointment to the highest
judicial offices? Please explain how you meet these
qualifications
4. Have you provided the statement required by article 36(4)(a) of the Rome
Statute and by the nomination
and election
procedure adopted by the Assembly of States Parties? If not, please provide an
explanation
for this
omission.
Legal
system
5. Which legal system does your country belong to? Please describe any
knowledge or experience you have
working in other legal systems.
Language
ability
6. The Rome Statute requires every candidate to have excellent knowledge of
and be fluent in English or
French.
a) What is your native language?
b) What is your knowledge and fluency in English? If it is not your
native language, please give an
example of your experience working in English.
c) What is your knowledge and fluency in French? If it is not your
native language, please give an
example of your experience working in French?
7. Your response to this question will depend on whether you were nominated
as a List A candidate or a List
B candidate. Since you may have the competence and experience to qualify
for both lists, please feel free
to answer both parts of this question to give the reader a more complete
view of your background and
experience.
Other
expertise and experience
8. Please describe the aspects of your career, experience or expertise
outside your professional competence
that you
consider especially relevant to the work of an ICC judge.
9. Please provide examples of your legal expertise in other relevant areas
such as the crimes over which the
Court has
jurisdiction; the management of complex criminal and mass crimes cases; or the
disclosure of
Evidence.
Experience
(and perspective) related to gender crimes and crimes of sexual violence
10. Historically, many of the grave abuses suffered by women in situations of
armed conflict have been
marginalized
or overlooked. Please describe any experience you may have in dealing with
crimes of
sexual and/or
gender based violence and where you have applied a gender perspective, i.e.
inquired into
the ways in
which men and women were differently impacted.
Victims
related work:
11. Victims have a recognized right to participate in ICC proceedings and to
apply for reparations under Article
75 of the Rome
Statute. Please describe any experience that you have, which would be relevant
to these
provisions,
particularly any experience you may have that would make you particularly
sensitive to/have
understanding
of the participation of victims in the courtroom.
12. How would you address the need for a balance between victims’
participation with the rights of the
accused to due
process and a fair and impartial trial? Do you have any relevant experience in
dealing with
this issue?
Human
rights and Humanitarian Law experience
13. Do you have any experience in working with or within international human
rights bodies or courts or have
you served on the
staff or board of directors of human rights or international humanitarian law organizations?
Please briefly describe.
14. Have you ever referred to or applied any specific provisions of
international human rights or international
humanitarian
law treaties within any judicial decision that you may have issued within the
context of your
judicial
activity or legal experience?
Implementation
of the Rome Statute and ICL
15. During the course of your judicial activity, if any, have you ever applied
the provisions of the Rome Statute directly or through the equivalent national
legislation that incorporates Rome Statute offences and procedure? Or have you ever referred to or applied the jurisprudence of
the ICC, ad hoc or special tribunals? If so please describe the context in
which you did.
Other
matters
16. Have you ever resigned from a position as a member of the bar of any
country or been disciplined or
censured by any bar association of which you may
have been a member? If yes, please describe the
circumstances.
17. It is expected that a judge shall not, by words or conduct, manifest or
appear to condone bias or prejudice,
including, but not limited to, bias or prejudice
based upon age, race, creed, color, gender, sexual orientation, religion, national
origin, disability, marital status, socioeconomic status, alienage or citizenship
status.
a) Do you disagree or have difficulty with this expectation?
b) Have you ever been found by a governmental, legal or professional body to
have discriminated against or harassed an individual on these grounds. If yes,
please describe the circumstances
18. Article 40 of the Rome Statute requires judges to be independent in the
performance of their functions.
Members of the
CICC and governments are concerned about the difficulties a judge may
experience in
independently
interpreting articles of the Rome Statute on which his or her government has
expressed an
opinion.
a) Do you expect to have any difficulties in your taking a position
independent of, and possibly
contrary to, your
government?
b) Article 41 requires a judge’s recusal “in any case in which his or her
impartiality might be doubted
on any ground.” Do
you feel you could participate in a judicial decision involving a matter
in
which your government
has an interest, such as whether an investigation by your government on a
matter of which
the ICC was seized was genuine?
19. The Rome Statute requires that judges elected to the Court be available
from the commencement of their terms, to serve a non-renewable nine-year term,
and possibly to remain in office to complete any trials or appeals. A judge is
expected to handle legal matters for at least seven hours per day, five days
per week.
a) Do you expect to be able to serve at the commencement and for the
duration of your term, if elected?
b) Do you expect to be able to perform the judicial tasks described above on
your own or with reasonable accommodation? If no, please describe the
circumstances.
20. If there are any other points/issues you wish to bring to the attention
of the Coalition in this questionnaire, please feel free to address them here.
The structure and content of this questionnaire are
relevant not only to the Coalition work but also to the AMICC advocacy
campaign.
Furthermore,
during the Panel discussions with some of the ICC
judicial candidates on the 11th and 12th Sept 2014 at UN
Headquarters, William R. Pace, Convenor of the Coalition, asked the candidates
to start with a general introduction about personal background and experience.
Later, He submitted them with the following
questions
1. What do you believe are some of the major challenges currently facing the
Court?
2. If you were elected ICC judge, which division would you like to work?
To the first question, most of the candidates
answered by enumerating issue related to the cooperation of States Parties with
the Court, the length of the trials and the lack of publicity among the public opinion.
(Hungarian candidate)
To the second question, almost all of them replied
not to have any preference regarding the Chamber, as they are willing to accept
to work in any Division.
However, some of them would prefer the Trial
Division (French candidate).
The audience invited to attend the two days panel
discussions included member of Human rights NGOs, advocacy groups,
representatives of States regional groups, UN Security Council representative,
and others groups.
They had time to ask questions directly to the ICC
candidates.
The most debated questions regarded:
1. The Independence of ICC judges from political pressures.
2. Individual and collective victims participation
3. Effectiveness and efficiency of ICC trials
4. Rights of the accused
5. Relations with the Security Council
Each candidate gave a wide range of answers
according to their personal domestic and international experience.
In his final remarks, Mr. Pace stated that the
discussion have been beneficial to the audience and public opinion, underlying however
some missing points which were not addressed.
They are namely:
1. Legal representation
2. Witness protection
3. Arrest warrant
4. Cooperation with Non-States Parties
Since 2011, AMICC has been participating
enthusiastically to these discussions as a sign of American involvement into
the ICC ‘s fight against impunity.
It also considers the participation to this meeting
fundamental and important for its advocacy campaign to stimulate and increase
American public opinion’s awareness of the ICC.
As a result, the US, although still a Non-State
Party, is also interested in a fairer and more transparent election procedure,
and therefore will continue to support the Coalition and the Independent panel
in reaching their goals.
It is not without importance that one of the
Independent panel members, The Honourable Patricia Wald (Vice-Chair), was Chief
Judge of the United States Court of Appeals for the District of Columbia, a
clear sign of the American cooperation with the Court.
Written for AMICC by Miriam Morfino on the 15th
of September 2014
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