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
Hoile, David, New African
THE ICC's JUDICIAL DIVISION CONSISTS OF 18 JUDGES who are elected to the Court by the Assembly of States 1 Parties. They serve 9-year terms and are nor 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". …