Embedded Files
Team Members: T. Gates, L. Johnson, and K. Kopp*
*Note: The team members contributed equally and are listed in alphabetical order.
ICC_Survival.pdfInfographic
Infographic
Please look at the infographic for the topic explored by the team
Podcast
Podcast
Please listen to the team's podcast with Google Chrome. The transcript can be found here.
ICC_Survival.mp3Advocacy Letter
Advocacy Letter
Please read the team's letter to the President of ICC, Piotr Hofmanski.
ICC_Survival_Letter.pdfBlog Post
Blog Post
Judge Selection and Legitimacy in the International Criminal Court (ICC)
Figure 1. This scene depicts a regular session of the ICC, with judges sitting in on a case (Alamy 2008).
THE INTRODUCTION OF THE ICC
The International Criminal Court (ICC) works to hold individuals accountable for the world’s worst crimes such as genocide, war crimes, crimes against humanity, and crimes of aggression. It was established in 2002 with a founding treaty called the Rome Statute which was ratified by over 60 countries. There are currently 123 countries that are party to this treaty; however, some have not signed the treaty while others have signed it without their government ratifying it. The court has18 judges which are nominated and elected by member states. Current policy requires judges to be elected to a nine-year nonrenewable term. The ICC is based out of The Hague in the Netherlands and has many other offices in other countries. The court's purpose is to prosecute individuals unlike the International Court of Justice (ICCJ) which focuses on disputes between states. The ICC is funded by member states and operated in 2020 with a $180 million budget (Olugbuo 2022).
THE PROBLEMS OF JUDGE SELECTION
The International Criminal Court (ICC) has recently attracted attention from a variety of actors in the international system due to their process of judge selection. The faulty process raises questions about the legitimacy of the court. Many of the issues stem from the lenient requirements for judges.
A famous case of this occurred when a Japanese judge, Fumiko Saiga, was elected without having a law degree. Judge Saiga is depicted here in Figure 2. The only formal education Saiga had was a Bachelor’s degree in Foreign Studies from Tokyogaikokuyo University. While a law degree is not explicitly stated in the candidate requirements, the lack of formal education surrounding the law is highly concerning. This election further threatened the legitimacy of the court as the position was given to Saiga due to the financial support provided by Japan (Hirsch 2010). This raises concerns about the legitimacy of the court for a number of reasons. It proves that the court can be corrupted through monetary influence and that nearly any candidate can be selected if a state presses it enough.
Figure 2. Judge Saiga swears in before beginning a case in the ICC. (Alamy 2008).
Another concerning aspect of the court is the concept of judicial modesty. This is the idea that judges will decide to refrain from dealing with any issues they perceive to be beyond their mandated reach and grasp. For the ICC, the problem of judicial modesty presents itself not in the courtroom,
public settings. One popular example occurred when Judge Marc Perrin de Brichambaut, depicted in Figure 3, gave a speech to students at Peking University Law School in China. During this speech, he made several controversial and derogatory statements. One example was the phrase that European states were “paying the bills” necessary to run the ICC, while the African states “provide the suspects”. This way of speaking was troublesome in both its offensiveness and the clear display of opinions on sensitive issues in a public forum (Carcano 2020). A similarly problematic case arose with Japanese judge, Kuniko Ozaki. Judge Ozaki, depicted in Figure 4, tried to secure her position as
Figure 3. This image shows Judge Marc Perrin de Brichambaut (Flickr 2022.).
Figure 4. This image shows Judge Ozaki (Scottish Legal News 2022).
an ambassador via her status as a judge. In order to do so, she pleaded with the court to allow her to obtain “part-time” status as a judge, to be eligible for the shift in position. Judge Ozaki was quickly awarded the position as a Japanese ambassador in Estonia (Scottish Legal News 2022). While Judge Kuniko Ozaki technically followed the code of law in obtaining the job, there was clear corruption in the dealings that got her appointed to the ambassador position.Through these cases, three main problems with judge selection become apparent. First, there is a lack of basic education law among the judges selected to represent their state on the court. Second, there is a clear bias towards certain countries in the judge selection process. Third, there is a lack of specialization among the judges selected. These issues form into a larger problem that threatens the overall legitimacy of the ICC.
HOW THE PROBLEM FORMS
According to the regulations laid out by the court itself, there are only four requirements. The first is that all candidates have an “established competence” of either criminal law, relevant areas of international law, or experience in a professional capacity in relevance to the operations of the court. The second requirement outlines that one must be a citizen of a state that is a party to the Rome Statute. The third states that candidates must be of “high moral character, impartiality, and integrity”. The final requirement is that the candidate must have “excellent” knowledge of at least one language of the court (ICC Women 2022). Due to the lack of stringency, some view judges selected by the court to be under-qualified.
In an interview conducted by Justice Hub with Humans Rights Watch, current "vote trading" and political interference in the nomination process is leading to poorly qualified judges who are not the most skilled or equipped for their position (Leeuwen 2014). Judges that are not properly vetted or experienced cause more controversial decisions to be made by the court.
A SOLUTION FOR LEGITIMACY
This heavily contributes to the downfall in the view of its legitimacy. The court is tasked with making serious decisions on criminal cases that affect people's lives around the world. This should be done by the most qualified individuals who have been selected through a stringent, fixed set of rules and qualifications.
Questions about the International Criminal Court’s legitimacy have also been raised by other alarming statistics. In the court, only 10 of the 123 member states have any form of representation. When compared with other multilateral institutions, this number is shocking. For example, in the Equality and Human Rights Commission, there is 100% state representation. Representation is an important component of any institution, but this is especially important in the ICC, as it hears legal cases from all member states (Olugbuo 2022). There is a potential bias that arises when only a select few states have formal representation in the decision-making process of the court. Additionally, a weakness of the court noted by experts in the field is that it relies entirely on state cooperation.
The threats of legitimacy to the International Criminal Court require action. A new judge selection system should be implemented in the court. This system would be merit and experience-based, with a focus on credentials. With a new process, transparency would be necessary to gain public support for the changes. Seeing as the stability of the court rests on state cooperation, the new selection system must be created and implemented by all of the member states. If equal participation in the selection process occurs, then the chances of equal judge selection in the future are far better.
References
Carcano, Andrea. 2020.“On the Exercise of the Judicial Function at the International Criminal Court: Issues of Credibility and Structural Design.” QIL
QDI. http://www.qil-qdi.org/on-the-exercise-of-the-judicial-function-at-the-international-criminal-court-issues-of-credibility-and-structural-design/ (February 21, 2022).
Hirsch, Afua. 2010. “System for Appointing Judges 'Undermining International Courts'.” 2010. The Guardian.
https://www.theguardian.com/law/2010/sep/08/law-international-court-justice-legal (February 21, 2022).
Leeuwen van, Sophie. 2014. “Election: We Might Not Get the Best ICC Judges.” Justice Hub.
https://justicehub.org/article/election-we-might-not-get-the-best-icc-judges (February 21, 2022).
Olugbuo, Benson. “Law and Politics at the International Criminal Court.” OpenGlobalRights.
https://www.openglobalrights.org/law-and-politics-at-international-criminal-court/?lang=English&et_rid=206153924&et_cid=2355895 (February 21, 2022).
“Judge Fumiko Saiga of Japan Takes the Oath during the Ceremony for the Undertaking of the Newly Elected ICC Judges in The Hague, January 17,
2008. Reuters/Michael Kooren (Netherlands Stock Photo.” Alamy. https://www.alamy.com/judge-fumiko-saiga-of-japan-takes-the-oath-during-the-ceremony-for-the-undertaking-of-the-newly-elected-icc-judges-in-the-hague-january-17-2008-reutersmichael-kooren-netherlands-image400244926.html (February 21, 2022).
“International Criminal Court Judge Steps down from Ambassadorial Position after Row.” 2019. Scottish Legal News.
https://www.scottishlegal.com/articles/international-criminal-court-judge-steps-down-from-ambassadorial-position-after-row (February 21, 2022).
ICC Women “Criteria for judges and prosecutors of the ICC.
http://iccwomen.org/wigjdraft1/Archives/oldWCGJ/Elections/criteria.html (February 21, 2022).
International Criminal Court / Cour pénale internationale. 2018. “Judge Marc Perrin De Brichambaut.” Flickr.
https://www.flickr.com/photos/icc-cpi/41187131062 (February 21, 2022).
Page updated
Google Sites
Report abuse