Election shines light on war crimes court

©Reuters

Wanted: a lawyer or judge with tested courtroom experience and knowledge of international law to sit with two other judges with whom you may not share a common language or legal system, to decide on the most serious cases of rape, genocide and other war crimes. Involves a move to The Hague. Attractive package available.

Put in those terms, it is perhaps clear why there is not a stampede of candidates to take up the six judicial vacancies at the International Criminal Court, even with a €180,000 (£157,000) tax-free salary and pension worth as much as €90,000 a year. A lack of candidates forced the court to extend a nomination deadline for six new judges by two weeks until this Friday, according to court officials.

“This is tough, expanding judicial work in the most complex legal proceedings one is likely to find,” said Richard Dicker of Human Rights Watch, a pressure group that monitors the court, the only permanent international court in the world that tries those suspected of war crimes and crimes against humanity. “Individuals considering being judges need to come with an attitude of rolling up their shirtsleeves.”

Over the ICC’s decade-long history, it has lost four judges to ill health, one of whom died. The workload of judges will only increase. Over the past year, it has added investigations into Kenya, Côte d’Ivoire and Libya. Even though countries including the United States, Russia and China have not ratified the Rome statute that created the court, those same countries have referred matters to the ICC – Libya, most recently – through their seats on the UN Security Council.

“We risk now undermining the incredible achievement that international justice has accomplished in the last 15 years if we do not resolve the issues of achieving major improvements in courtroom and trial management and of poorly qualified judges being elected to courts,” said Bill Pace, the convener of the Coalition for the ICC. The CICC grew so frustrated with the calibre of judicial candidates that it created a panel in May this year to vet nominations, led by Judge Richard Goldstone.

Some outsiders question the lack of an in-house ICC panel to vet candidates, but its creation would be fraught. “Any situation where a group of representatives of States Parties would in any way comment on the quality of candidatures put forward by other States Parties is delicate, and must be approached with care,” said Christian Wenaweser, president of the court’s legislative body, the Assembly of States Parties.

Judicial candidates must have experience of criminal proceedings, or of international law, and qualifications that would enable them to take up a place at their country’s highest court, according to the Rome Statute that established the ICC.

The most cited example of an ill-qualified judge to the Financial Times was that of Judge Fumiko Saiga of Japan, a career diplomat rather than a lawyer, who died in 2009 of a heart attack. Her replacement, Judge Kuniko Ozaki, also of Japan, still serves at the ICC and is not a qualified lawyer. Judge Ozaki stressed her experience in lecturing in international law and her time at Japan’s ministry of justice in responses to a CICC questionnaire at the time of her 2009 election.

The Japanese supreme court “traditionally has recruited at least one Justice of the Court from among administrators of the Government, who are not necessarily lawyers qualified at the bar,” she wrote. A spokesman for the ICC said that Judge Ozaki was elected in accordance with the Rome Statute and declined to comment further.

“The horse-trading and politicking is endemic,” said Philippe Sands, a barrister specialising in international law, whose book on the election of judges to international courts found that “vote-trading, campaigning, and regional politicking invariably play a great part in candidates’ chance of being elected than considerations of individual merit”.

Those who are successfully elected in December may not be able to start work straight away, another concern flagged by the president of the court, Sang-Hyun Song in correspondence seen by the Financial Times. This is because judges – both candidates and incumbents – must finish any trials they are sitting on, even if their terms have expired. The British candidate, Howard Morrison, is currently presiding over the trial at the International Criminal Tribunal for the former Yugoslavia. The trial is not expected to finish until 2014.

The organisation of the judges’ workload by the judges themselves – with no oversight – has also prompted criticism. In March 2009, judges chose Anita Ušacka of Latvia and Akua Kuenyehia of Ghana for appeals positions. Three months later, the pair had to step down from an appeal in the case of Germain Katanga of the Democratic Republic of Congo, on trial for war crimes and crimes against humanity, because they had previously issued his arrest warrant.

The ICC itself recognises that governance can be improved at the court and has set up a group studying the issue, which will report at the December meeting of member states and the election. “We wrote to the judges and said it was a concern to us,” said Mr Wenaweser. “But we have not concluded that we have to take it [the organisation of their workload] out of the hands of the judges.”