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PRINCIPLES and
RECOMMENDATIONS
Relating
to the
NOMINATION AND ELECTION OF JUDGES,
PROSECUTOR AND DEPUTY PROSECUTORS
For
the Ninth Session of the Preparatory Commission
For the International Criminal Court
8-19 April 2002
| Article 8. States Parties shall take all
appropriate measures to ensure to women, on equal terms with men and
without any discrimination, the opportunity to represent their
Governments at the international level and to participate in the work of
international organizations.
- Convention on the Elimination of All Forms of
Discrimination Against Women
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Summary of Recommendations
1.
An Advisory Committee should be created to manage and
monitor the nomination and election process, as suggested in the Rome Statute.
Additionally, the Advisory Committee itself should conform to the statute’s
mandates relating to geographical representation, fair representation of women
and men and the principle legal systems.
2. Unlike the practices so far, the mandate for fair representation of women
and men judges should be understood as an overarching concern and not as an
additional criteria or alternative to geographical representation or
representation of the principle legal systems.
3. The Assembly of States Parties should ensure that the mandate of
‘fair representation’ of women and men is understood as requiring a
distribution that will ensure parity. This is not a quota; it is ‘fair
representation’ given that women make up more than half the world’s
population. Anything less would be perpetuating the cycle of gender-based
discrimination.
4. The period between opening and closing of nominations should be not less
than three months.
5. The period between the close of nominations and the holding of elections
should be not less than two months. 6. Information about candidates for
the posts should be made publicly available and accessible immediately upon
receipt by the Advisory Committee or bureau. Additionally, the correspondence
of States Parties presenting the candidate for election should be made
available.
Nomination and Election
of Judges, Prosecutor and Deputy Prosecutors
As the first international institution of the
21st century, the International Criminal Court must be one that
finally reflects in its composition the fact that women make up half the
world’s population. The ICC, as an independent institution, is an
opportunity to begin anew and avoid past practices that have prevented women
from working on an equal footing in the international arena.
The Court’s legitimacy among the peoples of
the world – including women – will depend in many respects on its
fulfillment of its representation mandates. The recent judgement of the
Women’s International War Crimes Tribunal on
Japan
’s Military Sexual Slavery reveals
clearly one of the ways in which women have been disregarded, indeed betrayed,
by the international justice mechanisms of the past.
The Rome Statute has since raised the
standard for the recognition of forms of violence against women as among the
most serious crimes of concern to the international community. At the same
time, it represents a milestone in the way that gender is so thoroughly
mainstreamed. The Assembly of States Parties of the world’s first permanent
international criminal tribunal thus bears an enormous responsibility for
ensuring this standard-setting continues.
The disappointing precedent set by the United
Nations which fell far short of its target of achieving equal representation
of women and men by the year 2000 must be eschewed in this new and historic
institution. That men have been overwhelmingly over-represented at every level
of official decision-making in our societies – locally, regionally and,
especially, internationally is not a new revelation. This includes those
places where decisions, such as the nomination of candidates for international
postings, are often made. It is no longer acceptable to leave this to chance
or to the will of remote and elite networks. Women must be present on the
Court at an even par with men. This is not a quota; this is fair
representation.
Fair representation of women and men judges
on the Court is a central concern for the Women’s Caucus. However, another
priority is to ensure that the judges elected, whether female or male, bring a
gender perspective and experience to their work. This criteria should be
applied to and expected of male and female candidates equally as it is
necessary to ensuring cases of sexual and gender violence are properly
investigated and prosecuted.
In light of these concerns, we have
identified the following principles which should be applied to the development
of nomination and election procedures and a series of recommendations based on
the Working Paper Prepared by the Secretariat on the Election of judges, the
Prosecutor and the Registrar of the International Criminal Court, PCNICC/2002/WG.ASP-PD/L.1.
Principles
Relating to the Nomination and Election Process
1.
Transparency and
Opportunity
for Review
Any
procedures adopted in relation to the nomination and election of Court
officials must be transparent and allow ample time for review of candidate’s
backgrounds and qualifications by civil society and States Parties.
2.
Fair representation of women and men and geographical Representation are
overarching mandates and are not mutually satisfiable
The
mandates in article 36(8) relating to need among the judges for a fair
representation of women and men and geographical representation should be
carried out as overarching themes which have an impact on the entire process.
These are guiding principles which should have implications for the listing of
candidates and subsequent balloting. Thus, these criteria should not be lost
or forgotten once the actual elections of candidates from the two lists take
place.
3.
Fair representation means parity
In
the ICC context, fair representation must mean parity – an equivalent
presence of women and men. Anything less is discrimination.
4.
Civil Society involvement
The
procedures that will be adopted by the Assembly of States Parties must ensure
the role of civil society as key to ensuring an open and transparent process
and the ultimate election of the most suitable and qualified judges,
prosecutor and deputy prosecutors.
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Recommendations
to the Secretariat’s Working Paper
Part II.A.1 - Issuance of an
invitation for nominations:
- As
early as possible, it will be necessary to clearly establish and confirm
the ICC’s independence of the United Nations. For this reason, the first
round of nominations and elections of judges must be within the domain of
the Assembly of States Parties. (paras. 11 and 12)
- It
is important to ensure that the earliest communications emphasize and
remind States Parties of the need to ensure the criteria of the Statute
are met and that the need for fair representation of female and male
judges as well as geographical representation are taken into account in
the national level search. Any communication issued by the Assembly of
States Parties or subsidiary body charged with overseeing the nomination
process, should stress these provisions of the Statute.
- The
invitation, or notice regarding the opening of the nomination process,
should also mandate that the posting be transmitted to the national bar
and other relevant professional associations and universities of member
states. It should explicitly note the need to circulate the notice among
women’s professional associations, such as women’s judges associations
and women’s legal bar associations. The invitation could also require
that the postings be reported in States Parties’ letters accompanying
the nomination. This builds on the provision in article 6 of the Statute
of the International Court of Justice, for example, recommending that each
national group of the Permanent Court of Arbitrators “consult
its highest court of justice, its legal faculties and schools of law, and
its national academies and national sections of international academies
devoted to the study of law.”
Part II.A.2 – Timing for Issuance of an invitation for nomination and dates
for opening and closing of nominations
- The
period between opening and closing of the nominations must be long enough
to allow for a proper distribution and circulation of the notice
throughout national and international networks and professional
associations. The amount of time should be no less than three
months from the time of the opening of the nomination period until the
time of closing. (see para. 14)
- The
dates of opening and closing of nominations must be publicly announced.
- The
rules should mandate that the curriculum vitae of each candidate and the
statements by the nominating States Parties be immediately made available
– and accessible – to the public.
Part II.A.4 – Eligibility to make
nominations
- The
rules must establish clear channels for communicating the nomination of a
State Party’s candidate. (see para 18)
- The
rules should allow for States which have not completed their ratification
or accession during the nomination phase to put forward candidates but
should require that the ratification have been completed prior to the date
of elections. (para. 18)
Part II.A.5 – Role for an Advisory
Committee
- We
support the creation of an Advisory Committee as soon as possible to begin
the smooth management of the nomination and election process. Such a
committee could be tasked with issuing invitations for nominations, and
receiving nominations and fielding correspondence from States Parties
relating to the process. In addition, an Advisory Committee would be the
appropriate mechanism for overseeing the adherence to the statute’s
mandates concerning fair representation of female and male judges and
appropriate geographical representation.
- The
Advisory Committee should be tasked with providing periodic updates or
communiqués during the nomination process concerning the pool of
candidates and how they reflect the proportions of List A and List B, the
representation of women and men and further the geographical distribution.
In addition, if these criteria are not adequately reflected among the pool
of candidates, the Advisory Committee should be mandated to extend the
nomination phase and issue another call for invitations emphasizing those
criteria which are not reflected by the nominations.
Part III.1. Question of the Nomination of the
Prosecutor
The ability to submit candidates for nomination for the Office of the
Prosecutor should be restricted to States Parties to the Rome Statute. (para. 52)
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