27 November 2002

via fax to: (212) 687-3963

H.E. Ambassador A. Naidu
Permanent Representative of Fiji
to the United Nations

Re: Fiji Nomination for International Criminal Court

Dear Ambassador,

We are writing to express our concern about Fiji’s nomination to the International Criminal Court. We note that in the statement accompanying the information about the candidate, Mr. Timoci Tuivaga, it is stated that the nomination was undertaken in accordance with the procedure for nomination to highest judicial office. However, we have received word that this was not the case in that there was no consultation with the Judicial Services Commission or the appropriate Parliamentary Committee in the House of Representatives as normally required for nominations to Fiji’s highest judicial office. We view nominations which do not follow the procedures required by Article 36(4)(a) as inconsistent with and in violation of the Statute.

Further, we were alarmed to hear of the allegations of the candidate’s involvement in attempts to abrogate Fiji’s Constitution. You will understand, of course, that the first elections to the International Criminal Court will be enormously significant given the political climate into which the world’s first permanent criminal court will emerge. There will be enormous political and logistical challenges to the Court in its first years. The judges and prosecutor will be scrutinized by the media and public in a way never before encountered in elections for posts in other international judicial institutions.

It is imperative that candidates who are put forward as nominees, as well as the process of their selection, be above reproach. When the basic and simple mandates of the Rome Statute have not been complied with in the selection process, the entire process of election is tainted. Moreover, this goes against basic principles of transparency and accountability which the provisions in the Statute were intended to respect.

Further, when candidates are put forward who are believed to have circumvented, rather than upheld, their constitutions they cannot expect to have this go unnoted when it can have such a direct bearing on the assessment of their independence, impartiality and moral character.

We were thus concerned to hear that when women’s groups in Fiji expressed their concerns about the process and Mr. Tuivaga’s selection they were threatened by him with a lawsuit. We note that Mr. Tuivaga has taken similar retributive action in the past against other groups who have questioned his actions in the performance of his duties as Chief Judge, such as when he threatened to bar all members of the Fiji Law Society Council from his courtroom because they chose to question his role in the promulgation of the Administration of Justice Decree which set aside the Fiji Constitution.

We appreciate the role that Fiji has played thus far in the establishment of the ICC and in helping to ensure that appropriate rules were adopted by the Assembly of States Parties to govern the nomination and election process of the judges, prosecutor and deputy prosecutor. We hope that the government of Fiji will give the above serious consideration and take appropriate action so as to continue on a course of contributing so significantly to the promotion of international justice.

With best regards,

Pam Spees
Program Director