2011 International Criminal Court judges election explained

Six judges of the International Criminal Court were elected during the 10th session of the Assembly of States Parties to the Rome Statute of the International Criminal Court in New York between 12 and 21 December 2011.^[1] The judges elected, Anthony Carmona of Trinidad and Tobago, Miriam Defensor Santiago of the Philippines, Chile Eboe-Osuji of Nigeria, Robert Fremr of the Czech Republic, Olga Venecia Herrera Carbuccia of the Dominican Republic and Howard Morrison of the United Kingdom, took office on 11 March 2012.

Background

The judges elected at this session were to replace those six judges who were elected at the first election of ICC judges in 2003 for a full term of nine years; they were also to serve for nine years until 2021.

The election was governed by the Rome Statute of the International Criminal Court. Its article 36(8)(a) states that "[t]he States Parties shall, in the selection of judges, take into account the need, within the membership of the Court, for:

(i) The representation of the principal legal systems of the world;
(ii) Equitable geographical representation; and
(iii) A fair representation of female and male judges."

Furthermore, article 36(3)(b) and 36(5) provide for two lists:

List A contains those judges that "[h]ave established competence in criminal law and procedure, and the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings";
List B contains those who "[h]ave established competence in relevant areas of international law such as international humanitarian law and the law of human rights, and extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court".

Each candidate had to belong to exactly one list.

Further rules of election were adopted by a resolution of the Assembly of States Parties in 2004.^[2]

Nomination process

Following these rules, the nomination period of judges for the 2011 election lasted from 13 June to 2 September 2011 and was extended once until 16 September 2011 due to the lack of candidates from one regional group. The following persons were nominated:^[3]

Name	Nationality	List A or B	Region	Gender
		List A	African States	Male
		List A	African States	Male
		List A	African States	Male
		List A	African States	Male
		List A	Latin American and Caribbean States	Male
		List A	Western European and other States	Male
		List A	Latin American and Caribbean States	Male
		List B	Eastern European States	Male
		List B	Asian States	Female
		List A	African States	Male
		List A	Eastern European States	Male
		List A	Latin American and Caribbean States	Female
		List A	African States	Male
		List A	Latin American and Caribbean States	Male
		List A	African States	Male
		List A	Western European and other States	Male
		List A	African States	Male
		List A	Asian States	Male
		List B	Latin American and Caribbean States	Male

The nomination period could have been extended for a maximum of six weeks (it was once), two at a time, if there had not been nominated at least twice as many candidates for each criterion as necessary.

The nomination of Ajmi Bel Haj Hamouda was withdrawn before the session.

Minimum voting requirements

Minimum voting requirements governed part of the election. This was to ensure that article 36(8)(a) cited above was fulfilled. For this election, the following minimum voting requirements existed; they were to be adjusted once the election was underway.

Regarding the List A or B requirement, States Parties had to vote for three candidates from list A in the early rounds of voting. The minimum requirement of judges from list B was fulfilled. This requirement was not to be waived under any circumstance.

Regarding the regional criteria, initially there were three seats reserved for regional groups: one for the Eastern European States and two for the Latin American and Caribbean States. On 13 October 2011, the Bureau of the ASP notified States Parties of the application of Paragraph 20 (b) of ICC-ASP/3/Res.6 regarding the conditions for obtaining an additional regional seat, in this case referring to Asia, where the membership of the Maldives as the 17th Asian ICC member state triggered a fourth seat to be reserved for an Asian judge. Thus, there were four regional seats to be reserved for which to be voted in the early rounds of voting - one Asian seat, one Eastern European seat, and 2 GRULAC seats. The minimum requirement for judges from African and Western European and other states was fulfilled.

Regarding the gender criteria, the minimum requirement for female judges was fulfilled. States Parties had to vote for two male candidates in the early rounds of voting.

The regional and gender criteria could have been adjusted even before the election depending on the number of candidates. Paragraph 20(b) of the ASP resolution that governed the elections states that if there had been less than double the number of candidates required for each region, the minimum voting requirement would have been a (rounded-up) half of the number of candidates; except when there had been only one candidate which would have resulted in no voting requirement. Furthermore, if the number of candidates of one gender had been less than ten, then the minimum voting requirement would not have exceeded a certain number depending on the number of candidates.

The regional and gender criteria were to be dropped either if they were not (jointly) possible any more, or if after four ballots not all seats were filled (as was the case in this election).

Given the nominations (already taking into account the withdrawal of Ajmi Bel Haj Hamouda which did not change the outcome, however), the voting requirements were as follows:

Criterion	Voting requirement ex ante	Candidates as of now	Adjusted voting requirement	Adjusted requirement equals ex ante?
Lists A or B
List A	3	15	3
List B	0	3	0
Regional criteria
African states	0	7	0
Asian states	1	2	1
Eastern European states	1	2	1
Latin American and Caribbean States	2	5	2
Western European and other States	0	2	0
Gender criteria
Female	0	2	0
Male	2	16	2

Campaign on International Criminal Court Elections

Because of the importance of qualified and impartial judges, NGOs have taken a particular interest in the ICC judges election.^[4] The "Campaign on International Criminal Court Elections" was launched to promote the nomination and election of the most highly qualified officials through fair, merit-based, and transparent processes. This Campaign is sponsored by the Coalition for the International Criminal Court, a group of NGOs. Among other things, the Coalition is strongly opposed to "vote-trading" among States Parties.^[5] In December 2010, the Coalition established an Independent Panel on International Criminal Court Judicial Elections. The panel is to "issue a report containing an assessment of each judicial candidate as 'Qualified' or 'Not Qualified' after the closing of the nomination period and in advance of the December 2011 elections."^[6] The members of the panel are:^[6]

The Honourable Richard Goldstone (chair)
The Honourable Patricia Wald (vice-chair)
The Honourable Hans Corell
Judge O-Gon Kwon
Dr. Cecilia Medina Quiroga

On 26 October 2011, the Panel published a report^[7] in which it assessed the candidates as follows in regard to their qualification to serve as a judge on the ICC in their respective list:

Name	Nationality	List A or B	Region	Gender	Qualified or not
		List A	African States	Male
		List A	African States	Male
		List A	African States	Male
		List A	African States	Male
		List A	Latin American and Caribbean States	Male
		List A	Western European and other States	Male
		List A	Latin American and Caribbean States	Male
		List B	Eastern European States	Male
		List B	Asian States	Female
		List A	African States	Male
		List A	Eastern European States	Male
		List A	Latin American and Caribbean States	Female
		List A	African States	Male
		List A	Latin American and Caribbean States	Male
		List A	African States	Male
		List A	Western European and other States	Male
		List A	African States	Male
		List A	Asian States	Male
		List B	Latin American and Caribbean States	Male

Ballots

The ballot results were as follows:^[8]

Name	Nationality	List A or B	Region	Gender	1st round	2nd round	3rd round	4th round	5th round	6th round	7th round	8th round	9th round	10th round
Name	Nationality	List A or B	Region	Gender	12 December 2011	13 December 2011				14 December 2011			15 December 2011
Number of States Parties voting					104	107	115	116	117	115	115	114	112	114
Two-thirds majority					70	72	77	78	78	77	77	76	75	76
		List B	Asian States	Female	bgcolor=lightgreen	79	elected
		List A	Latin American and Caribbean States	Male	bgcolor=lightgreen	72	elected
		List A	Eastern European States	Male	62	bgcolor=lightgreen	77	elected
		List A	Western European and other States	Male	51	54	62	64	67	71	69	69	70	62
		List A	African States	Male	34	39	41	47	51	52	57	58	56	61
		List A	Latin American and Caribbean States	Female	44	36	38	38	40	40	41	46	57	52
		List A	Western European and other States	Male	40	44	46	50	51	54	50	54	46	45
		List A	African States	Male	27	29	25	30	31	26	39	37	38	40
		List B	Latin American and Caribbean States	Male	36	37	37	49	45	46	39	39	44	31
		List A	Latin American and Caribbean States	Male	33	28	32	34	30	33	25	24	withdrawn
		List A	Latin American and Caribbean States	Male	35	29	25	23	17	16	12	withdrawn
		List B	Eastern European States	Male	46	36	14	9	11	withdrawn
		List A	African States	Male	12	10	6	withdrawn
		List A	Asian States	Male	28	6	withdrawn
		List A	African States	Male	1	2	withdrawn
		List A	African States	Male	10	withdrawn
		List A	African States	Male	7	withdrawn
		List A	African States	Male	3	withdrawn

Name	Nationality	List A or B	Region	Gender	11th round	12th round	13th round	14th round	15th round
Name	Nationality	List A or B	Region	Gender	15 December 2011		16 December 2011
Number of States Parties voting					109	109	105	113	102
Two-thirds majority					73	73	70	76	68
		List A	Latin American and Caribbean States	Female	71	bgcolor=lightgreen	77	elected
		List A	Western European and other States	Male	64	66	bgcolor=lightgreen	72	elected
		List A	African States	Male	62	63	59	68	bgcolor=lightgreen	102
		List A	Western European and other States	Male	44	46	45	45	withdrawn
		List A	African States	Male	36	34	22	withdrawn
		List B	Latin American and Caribbean States	Male	withdrawn

After the first ballot, the minimum voting requirement for the Asian seat was fulfilled. The list A minimum voting requirement dropped to two, the Latin American and Caribbean States (GRULAC) minimum voting requirement dropped to one and the male candidates minimum voting requirement dropped to one, as well. The Eastern European States minimum voting requirement remained at one.

After the second ballot, the minimum voting requirement for the Eastern European seat was fulfilled as well as the male candidates seat. The list A minimum voting requirement dropped to one while the GRULAC seat remained at one.

As no new judges were elected during the third and fourth ballot, the minimum voting requirement for the GRULAC seat was abandoned. Only the list A minimum voting requirement (one judge) remained in place until such a judge was elected. After the election of a list A judge in the 12th ballot all minimum voting requirements were fulfilled.

Notes and References

News: Election of six judges – December 2011 . . 2011-06-28 . 2011-06-28. https://web.archive.org/web/20110624042225/http://www.icc-cpi.int/nr/exeres/1650b625-2439-4258-b97b-71967d69e069.htm. 2011-06-24.
Web site: Resolution ICC-ASP/3/Res.6. . 10 September 2004 . 22 July 2024 . live. http://web.archive.org/web/20240415064515/https://asp.icc-cpi.int/sites/asp/files/asp_docs/Resolutions/ICC-ASP-ASP3-Res-06-ENG.pdf. 15 April 2024.
News: Alphabetical listing . . 2011-06-28 . 2011-07-18 . https://web.archive.org/web/20110807092910/http://www.icc-cpi.int/Menus/ASP/Elections/Judges/2011/Alphabetical%2Blisting-2011.htm . 7 August 2011 . dead.
Web site: The importance of monitoring ICC elections . Mariana Rodriguez-Pareja . 2011-06-09 . 2011-07-27 . Global Memo.
Web site: Delivering on the promise of a fair, effective and independent Court – Election of ICC and ASP Officials . https://web.archive.org/web/20070307004609/http://www.iccnow.org/?mod=elections . usurped . 7 March 2007 . 2011-07-27 . Coalition for the International Criminal Court.
Web site: Independent Panel on ICC Judicial Elections . 2011-07-27 . https://web.archive.org/web/20120120014315/http://www.iccindependentpanel.org/about . 20 January 2012 . dead.
http://www.iccindependentpanel.org/sites/default/files/Independent%20Panel%20on%20ICC%20Judicial%20Elections%20-%20Report%2026%20October%202011.pdf Report on International Criminal Court Judicial Nominations 2011
Web site: Final Results. December 19, 2011. July 22, 2024.