By: Richard J. Goldstone, Former Justice of the Constitutional Court of South Africa, First Chief Prosecutor of the International Criminal Tribunal for Yugoslavia, and Regular Columnist, International Judicial Monitor

The Rome Statute that governs the International Criminal Court (ICC) specifies in Article 36 the qualifications that are required for judicial nominees.  The judges are required to be persons of high moral character, impartiality and integrity who possess the qualifications required in their respective states for appointment to the highest judicial office. They are also required to have established competence in one or both of: (a) criminal law and procedure and relevant experience as a judge, prosecutor or advocate in criminal proceedings; or (b) relevant areas of international law such as international humanitarian law and the law of human rights and extensive experience in a professional legal capacity which is of relevance to the judicial work of the court. Every candidate is required to have an excellent knowledge and be fluent in at least one of the two working languages of the court, English and French.

The eighteen judges each serve for a fixed non-renewable term of nine years. Six of them are replaced every three years by the Assembly of States Parties (ASP) in which each nation that has ratified the Rome Statute has one vote. For election a candidate requires the support of two-thirds of the total membership of the ASP.

Until recently the ASP has not considered establishing a mechanism to vet the qualifications of candidates. Governments put forward their candidates and it was assumed by the ASP that they were possessed of the required experience referred to in Article 36. In at least one case an elected judge was clearly not qualified. The Coalition for the International Criminal Court (CICC) decided to set up a non-governmental independent panel to consider and publicly report on whether candidates were qualified or not.  The CICC is a federation representing over 2500 NGOs from some 150 countries. Since the inception of the ICC, the CICC has played an impressive role in publicizing and supporting the ICC.

In 2011 the CICC established the Independent Panel on International Criminal Court Judicial Elections. It had five members representative of the world’s major legal systems. I was appointed to chair the panel. The other members were Honorable Pat Wald (Vice-Chair (US), Dr. Cecilia Medina Quiroga (Chile), Honorable Hans Corell (Sweden), and Honorable O-Gon Kwon (South Korea). The panel’s brief was to have regard to the information concerning all candidates for election placed before the ASP and otherwise in the public domain. On the basis of that information, having regard only to the qualifications set out in the Rome Statue, we issued a public report stating whether in our view the candidates were qualified or unqualified. If any candidate was found to be unqualified, the panel furnished reasons for that conclusion. In the result we considered the qualifications of the nineteen candidates and found four of them to be unqualified. When the election was held by the ASP in December 2011 none of those four was elected by the ASP.

The panel was completely independent of both the ASP and the CICC. It adopted its own terms of reference and these are available on the website of the CICC and the panel’s own website. The members reached a consensus decision on the qualifications of all nineteen candidates.

The panel represents the first-ever civil society effort to assess the qualifications of candidates for the ICC. The CICC is to be congratulated on having conceived of and implemented the initiative. Its reasons for doing so were, first to fill a gap in the ASP procedures for the election of judges; second to create a public awareness of the qualifications of ICC judges; third to encourage States Parties to nominate the most highly qualified judicial candidates; and fourth to ensure a transparent election of the ICC judges based on merit.

Our awareness that the panel was in effect filling a gap in the ASP election process would have made us feel uncomfortable without the panel having the full and open endorsement of by the leaders of the ASP. That was indeed forthcoming. The panel recommended that for the future the ASP should itself establish an independent committee to consider and report on candidates for election. We are delighted that this recommendation has been accepted by the ASP and provision has now been made for the election of nine independent members to be appointed to the ASP’s Advisory Committee on Nominations. Provision for such a committee is made to in the Rome Treaty.

Based upon my own experience with the panel, I would make the following recommendations to the ASP:

• Ensure the complete independence of the members of the new Advisory Committee still to be established;

• Ensure that the members are experts in international law;

• Prepare well ahead of the election and so ensure that the    report of the Advisory Committee enables the ASP to benefit from the committee’s findings and recommendations;

• Ensure transparency regarding the Committee’s working methods;

• Maintain strict confidentiality.

There is one final issue that I would raise and that relates to the age and physical fitness of candidates. The appointment of the judges is for a period of nine years. The work of the Court is often grueling and requires physical and mental fitness. While no guarantee can ever be given with regard to the future condition of candidates it would be wise for the ASP to set an age limit for appointment. As appears from the report of the panel the great majority of the States Parties to the Rome Treaty have age limits for their own domestic judges. There is no good reason for the ICC not to do so. I would suggest that on appointment judges should not be older than 66. That would mean that on retirement they will be 75 years of age. These recommendations are my own and do not necessarily reflect those of the members of the panel.

The reputation and credibility of the ICC depends on the independence and competence of its judges. No step should be omitted by the ASP to ensure that the judges it appoints are the most qualified and able.

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