Global Policy Forum

By Darin R. Bartram and David B. Rivkin JR.

The state parties to the 1998 Rome Statute of the International Criminal Court, or the ICC, met earlier this month in New York to elect its first judges. If this event is any indication of the court's future conduct, the ICC is in deep trouble.

The Assembly of States Parties, in its first official act, disregarded the express requirements of the court's enabling statute, which requires that judges be elected with "a two- thirds majority of the States Parties present and voting," and elected three judges with insufficient votes. The taint of these improperly selected judges will carry forward well into the future, affecting the court's reputation and ability to function.

This may seem to be a technical objection, but scrupulous compliance with rules and procedures is the hallmark of all well-functioning judicial institutions. A cavalier attitude towards the Rome Statute's requirements, at the very dawn of the court's institutional existence, suggests an ominous future. In fact, it confirms the grave doubts, expressed by many of the court's critics, about how an untried institution with significant authority, but no external checks and balances, would behave. The court's supporters, flushed with the zeal of successful crusaders, have always brushed aside these concerns, claiming that the ICC can be expected to conduct itself with unimpeachable integrity and exceptional probity, and arguing that the ICC should be judged on its record, rather than on speculative fears. That record has had a bad start.

Admittedly, the Rome Statute established a positively Byzantine process for the election of the ICC's 18 judges. It required the parties to take into account a candidate's geographic origin, sex and legal tradition. The gender requirement was implemented by requiring voting states to elect a minimum of six women. The geographic component requires that a minimum of three judges come from Africa, two from Asia, three from Western Europe, and three from Latin America. In addition, the statute mandated that at least nine judges have a background in criminal law, and that at least five be international law experts. The first two requirements applied only during the initial four rounds of voting; the last one applied throughout the process.

Given these requirements, and the difficulty of reaching consensus in an institution that incorporates states with legal traditions as different as those of Great Britain and Paraguay, it is not surprising that achieving a majority of two-thirds of the delegates proved difficult. It took 33 rounds of voting, over the course of three days, to elect all 18 judges. Twenty-five of those voting rounds failed to elect a single judge. Corners, unfortunately, were cut.

There were 85 states present and voting. A two-thirds majority is 57. To be precise, two-thirds of 85 is 56 2/3. This figure, however, must be rounded up to 57, since a judge receiving 56 simply has not received the two-thirds necessary. Thus, the judges elected from South Africa, Trinidad and Tobago, and Finland, who each received only 56 votes, were each one vote short.

These three judges were elected during the initial four rounds of voting, when the geographic and gender requirements applied, and it appears that the votes of states who selected too many men, or too many candidates from the wrong continent, or just too many candidates overall, were set aside. In other words, the invalidation of a vote was taken to reduce by one both the numerator and denominator in the equation to determine whether a candidate received a two- thirds majority. This is simply contrary to the Rome Statute. Some state parties may have voted incorrectly, but they were nevertheless present and voting. Thus, these three judges received two-thirds of the votes which the Assembly decided to count, but not two-thirds of those states present and voting. Had the drafters of the Rome Statute intended a contrary result, they could have based the two-thirds requirement on the "number of votes validly cast." They didn't.

The taint on the election of these judges will carry forward long into the future -- one judge (from Trinidad and Tobago) has been given a nine-year term, and another (from South Africa) will serve for six years -- and it is not just a matter of niggling over legal niceties. Every defendant brought before these judges will have a sound basis on which to contest a guilty verdict in an appeal. Worse still, given that these judges constitute one-sixth of the whole panel, it is very likely that at least one of them will be on the Appeals Chamber that would hear any such appeal, undercutting the legitimacy of any ensuing decision.

Even more fundamentally, however, the way in which the Assembly of State Parties ignored the requirements of the ICC's founding statute, its constitution, suggests that the law is not going to be permitted to interfere with what they believe to be the court's overarching mission. Because many substantive issues, relating to the jurisdiction of the court and the nature of the offenses to be prosecuted by it, will be determined in the future by the Assembly, with the definition of the crime of "aggression" being the key, its conduct during the judicial process does not bode well. All in all, this is a bad start for the court.

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