27 November 2002

via fax to: (212) 826-0830

H.E. Prince Zeid Ra’ad Zeid al-Hussein
President of the Bureau
ICC Assembly of States Parties

and

Permanent Representative
of the Hashemite Kingdom of Jordan to the United Nations

Re: Nomination Procedures for ICC Candidates

Dear Ambassador,

We are writing to call your attention to a matter of serious concern regarding the procedures used at the national level for nominating candidates for the post of judge in the International Criminal Court. The Women’s Caucus knows of several examples thus far in the nomination period where governments have put forward candidates without following either of the two procedures for nomination set out in Article 36(4)(a) of the Rome Statute.

In Fiji, for example, the government claims in its statement that it arrived at Mr. Tuivaga’s nomination through the procedure for nomination to highest judicial office (Article 36(4)(a)(i)). However, this process, which involves selection by the President, consultation with the Judicial Services Commission and a Parliamentary Committee in the House of Representatives, was not followed in any way.

Yesterday, we received word that the government in Argentina has decided it does not need to follow either of the procedures set out in the Rome Statute because it is nominating someone who already occupies a seat on the Supreme Court. This is despite the fact that the national group had recommended a different candidate in accordance with the procedure set out in Article 36(4)(a)(ii). The procedure in Argentina for nomination to highest judicial office involves a recommendation by the Executive for the particular post and a 2/3 vote of the Senate. We believe the government’s arbitrary interpretation of the Statute is disingenuous and is blatantly inconsistent with the Rome Statute.

In instances such as these, when the basic and simple mandates of the Rome Statute have been so clearly disregarded, we believe there should be some method of checks and balances in place. We view the Bureau as the only point in the process where this can and must happen.

We know that you understand the enormous significance of the first elections of the Court given the political climate into which the ICC will emerge and the need, therefore, for highly qualified judges who can be independent and impartial and who are known to be persons of high moral character. When the procedures mandated by the Rome Statute are disregarded in the selection at the national level, this can taint the entire process of elections to the Court. Further, given the level of discrimination women face at the national level in many parts of the world, such non-transparent processes work against their efforts to take part or compete on an equal footing for the candidacy.

The Bureau, as the governing body charged with overseeing the elections, should require that governments certify in more detail the methods and procedures followed – including dates of consultations and relevant decisions by the bodies involved. If the process undertaken is not in accordance with the procedure for nomination to highest judicial office or for nomination to the International Court of Justice, the Bureau should call this to the attention of the government in question and refuse to accept the nomination until such time that the selection can be made without violating the Rome Statute.

Further, we have already called to your attention the fact that some governments had not included the statements required in Article 36(4)(a) when they submitted their nominations. This is another step where the Bureau can play a stronger role by simply refusing to accept the nomination as official until the government supplies the statement as required by the Statute. This is a basic and very simple prerequisite in the Statute and can be easily complied with. The fact that it has not been complied with or enforced is disappointing.

The Bureau is the only possible mechanism for ensuring the mandates of the Statute are complied with and therefore that the process of elections before the ICC, in its entirety, is transparent and accountable in light of the Statute.

We hope you take these matters into serious consideration and respond accordingly in your capacity as President of the Bureau.

With best regards,

Pam Spees
Program Director