|
Recommendations and Commentary
Re: Election of Judges
Submitted to the ICC Assembly of
States Parties
September 2002
The Women's Caucus is gravely concerned that the rules
for election of judges were the only set of rules on which the Preparatory
Commission was unable to reach consensus in the four years of work since the
adoption of the Rome Statute. Mandates in the Rome Statute relating to
representation of women and men or geographical distribution in the election
of judges are not in conflict with the need to have highly qualified judges
seated on the Court.
As the first highly visible public act of the ASP, it is
critical that the election of judges be transparent and fulfill the mandates
of article 36(8) of the Rome Statute concerning a fair representation of women
and men, equitable geographical distribution and representation of the
principle legal systems of the world in addition to the requirements of
article 36(5) concerning criminal law and international law experience.
Arguments that only free elections can produce highly qualified judges not
only ignore Art. 36(8) of the Rome Statute, but also presuppose that qualified
judges can come from only one region or gender. This presumption, and the
potential outcome of elections without any voting requirement to ensure gender
and geographical representation, could essentially produce results that would
seriously jeopardize the universality and international character of the
Court.
The election of judges to the ICC must not follow the
practice of past elections as they have taken place in the UN system. The ICC
is a new and independent institution and must be universal in its composition
and at the same time help set a new standard for these processes at the
international level.
Draft Resolution of the Assembly of States Parties on
the Procedure for the Election of Judges to the ICC - proposed by Mexico,
Costa Rica, et al
The Women's Caucus supports the effort of the sponsoring
countries of the Draft Resolution to bring about a compromise that is closely
based on DP.8 which is where the discussion ended at the 10th Session of the
Preparatory Commission. Though the proposal is not perfect, it is in our view
a workable procedure.
While we generally support the spirit of the proposal
and the creative and constructive way in which some of the difficult issues
that arose during the 10th session were approached, the following are our
priority concerns in the draft resolution:
- Discontinuation of Minimum Voting Requirements should
not be allowed.
The provision in paragraph 7 allowing for
discontinuation of the minimum voting requirements after four rounds should be
deleted. The minimum voting requirements should be maintained until all 18
judges are elected.
It has often been the case that it takes multiple rounds
to seat judges in elections. For example, in the March 2001 elections for
judges at the ICTY, it took seven rounds of voting before all 14 judges were
seated. Further, these elections have not been subject to geographical or
gender voting requirements. It is reasonable to expect that the election of
the first 18 judges to the ICC will similarly require multiple rounds of
voting. Because this election and the statute's mandates are so critical, the
minimum voting requirements should be maintained throughout.
- Reduction of Gender Minimum Voting Requirement should
be one less than the number of candidates.
Paragraph 3(c) of the current proposal sets the number
of adjustment for the gender voting requirement at two less than the number of
candidates in the event that there are fewer than eight. This should be
changed to be in accord with the adjustment relating to the geographical
voting requirement which is one less than the number of candidates from a
given region. In the event that the number of either male or female candidates
is less than eight, the minimum voting requirement should be adjusted by
subtracting one from the number of candidates.
Proposal by France Regarding the Election of Judges
The procedure for the election of judges adopted by the
ASP should not favor one set of criteria over another. All criteria are
equally critical and necessary to the Court's composition. By breaking the
voting into separate stages according to gender or geographic voting
requirements, the proposal by France would advantage one at the expense of the
other. It would be extremely difficult to ensure gender AND geographical
distribution following France's proposal.
- End -
version espanol |
