Court Rise, Enter Your Honours!

ICC judges are appointed not because they are the best legal minds in the world, but because of backroom vote trading. As Dr David Hoile reports, some of them have had no legal training or judicial experience at all.

The ICC’s judicial division consists of 18 judges who are elected to the Court by the Assembly of States Parties. They serve 9-year terms and are not generally eligible for re-election. All judges must be nationals of states parties to the Rome Statute, and no two judges may be nationals of the same state. They must be “persons of high moral character, impartiality and integrity who possess the qualifications required in their respective states for appointment to the highest offices”.

But some of the judges are appointed because it is a cosy retirement job. Some are washed-up politicians. Some are diplomats, and others are appointed because their governments pay the ICC a lot of money.

The Court has three chambers, the Pre-Trial Chamber (with 7 judges), the Trial Chamber (with 6 judges) and the Appeals Chamber (with 5 judges). The Pre-Trial Chamber decides whether the chief prosecutor is allowed to start a formal investigation into a case.

The Trial Chamber decides whether the accused person is guilty as charged and if they find him or her guilty, will assign the punishment for the crime and any damages to be paid to the victims. It must also ensure that a trial is fair and expeditious, and is conducted with full respect for the rights of the accused with regard to the protection of victims and witnesses.

When the prosecutor or the convicted person appeals against the decision of the Pre-Trial or Trial Chambers, the case comes to the Appeals Chamber, which may decide to reverse or amend a decision, judgement, or sentence. It can also order a new trial before a different Trial Chamber.

A central criticism of the ICC is that the prosecutor and judges are unaccountable to anyone. The allocation of such unqualified power is based on the belief that the ICC prosecutor and judges are beyond reproach, by way of qualifications, ethically and personally. Sadly, this is quite clearly not the case.

The first bench of 18 judges were elected by the Assembly of States Parties in February 2003. Sylvia de Bertodano, an international lawyer with experience of the ICTY, ICTR and the East Timor tribunal, has pointed to the political selection of the ICC judges and the dangers to judicial independence: “Judges in international tribunals have historically been subject to political pressures which might influence the independence of their position. The Rome Statute has created a system in which judges are selected by political representatives of states parties, without any independent screening process.”

The legal competence of a number of the people appointed to become ICC judges has been called into question. Sir Geoffrey Nice, a leading international lawyer and chief prosecutor in the ICTY trial of Slobodan Milosevic from 1998 to 2001, observed in his critique of the ICTY that the tribunal’s judges were “generally not of the top flight… They are appointed by geographical spread – and some are dumped here; some are academics with little experience; some ex-diplomats with little experience of the law”.

One of the most controversial of such appointees was Carla del Ponte, the former Swiss attorney general who was the ICTY chief prosecutor from 1999 to 2007. Nice recorded that: “She had little interest in the details of the case. She was obsessed with publicity.”
John Jones, a British former ICTY prosecutor – who has co-written the standard work on international criminal practice – says that: “Initially I was very much a believer: here, for the first time since Nuremberg, was international justice. Then I became cynical – I saw that the judges often didn’t know what was happening, the trials were being ruined. And I saw that the UN, which is supposed to supervise, has no moral compass. It enjoins even-handedness on ethnic grounds, not on grounds of justice.”

The comparisons with the ICC resonate. ICC judges are similarly appointed by an ethnic and geographical spread, and in many cases lack relevant legal experience. Judges are selected by political representatives of states parties, without any independent screening process. With a few exceptions, the ICC judges have been a combination of former politicians, diplomats, academics, and “human rights” activists. It is clear that even the Assembly of States Parties itself has for some considerable time been aware of this problem given that it has appealed for this not to happen. The Japanese judge, Fumiko Saiga, was a case in point. She was appointed as an ICC judge in late 2007 after Japan became the biggest single contributor to the ICC.

Between 2003 and 2007, Saiga served as the Japanese ambassador to Norway and Iceland, and was also Japan’s ambassador with responsibility for human rights from 2005. She also had considerable experience in Japan’s relations with the United Nations. She had no legal training or judicial experience.

Joshua Rozenberg, the British legal commentator said: “Surely someone who is going to have to give binding legal rulings in court without the assistance of a legal adviser needs some experience as a lawyer?”

Saiga died in April 2009. The Japanese government nominated Prof Kuniko Ozaki as her replacement. Ozaki similarly has no experience as a judge. She is a professor at the National Graduate Institute for Policy Studies and a special assistant at the Japanese Ministry of Foreign Affairs. She has at best an academic legal background. Most of her career has been at the Japanese foreign ministry.

Rozenberg reported that the reason for the lack of experienced Japanese judges is that “no Japanese judge is likely to speak English to the level required to operate in The Hague. The only people who can do the job are likely to be career diplomats.”

The simple fact is that, with a few exceptions, the judges at the ICC have been lacklustre political appointees, very much the result of the very “vote trading” that Human Rights Watch is so rightly concerned with. Yet these are the same people who are tasked with making complex decisions about some of the most complex situations in the world, decisions which quite literally affect life and death in Africa.