The curious case of election of ICC judges

In Kenyan eyes, the process by which judges of the International Criminal Court (ICC) are selected can only be viewed as a puzzling and alien spectacle.

Unlike our domestic process where an independent constitutional commission – the Judicial Service Commission – advertises vacancies and thereafter interviews the shortlisted candidates, judges of the Hague-based court are literally elected by a two-thirds majority vote of those present and voting during the ICC’s Assembly of State Parties (ASP), the most recent of which concluded on December 17, 2014 in New York.

The ICC judicial election process is a sight to behold. There’s no pretence the exercise is about putting the very best from around the globe into the hot-seats of the ICC’s pre-trial, trial and appeals chambers. On the contrary, the entire process is characterised by overt lobbying, diplomatic intrigue, horse-trading and backroom deals.

During the just-concluded session which sought to fill six vacancies at the ICC, negotiations and coalition-building were at their very best. On offer was a wide array of promises and incentives; including reciprocal support at future summits, international trade deal approvals and all manner of diplomatic sweeteners.

INTENSE EXERCISE

Very quickly, the State Parties present coalesced into distinct voting blocs based on geography. These were: Africa, Grulac (Group of Latin American Countries), Western Europe, Eastern Europe and the Asia-Pacific bloc.

What followed was a gruelling and intense exercise in the dark arts of diplomacy and international relations that covered 19 rounds of voting and run-offs over 11 days. Promises were made, threats were issued, favours were called in and bargains struck until eventually veritable white smoke billowed from the proverbial chimney of the United Nations building in New York.

Watching all this unfold was a rude shock and a profound wake-up call for me. The scales of naivety fell from my eyes and, for the first time, I began to see the ICC for what it truly is. All along I had hoped that despite the intrigues that inform the investigation and prosecution processes of the Hague-based court, the judicial functions of the court would be lily-white and untainted by international politics. I was mistaken.

I have been fortunate in a previous occasion to have been intimately involved in the inner workings of both a political party and a political coalition. What I witnessed at the ASP in New York was exactly the same horse-trading, negotiations and regional balance considerations that are at the heart of Kenya’s political processes; particularly at party nominations stage; only at an extremely advanced and cut-throat level. While there were no so-called Men-In-Black to blatantly exert their masters’ will on the nomination processes, there were shadowy figures that would stall the rounds of voting until they had their way.

IMPOSSIBILITY

All this has me thinking: Can the products of such a vicious and overtly political process be truly independent adjudicators? Does the open diplomatic skullduggery and horse-trading that must take place before one can be appointed to the ICC judicial arm indelibly taint the person and compromise his or her capacity to be truly independent?

I tend to think so. How can we reasonably expect someone to hold to account the very same nations and powerful interests that brought them into office? To expect otherwise would be akin to expecting a Nominated MP or MCA to go against the party that sponsored him or her to Parliament.

No judge of the ICC is in office without having received the support of a voting bloc as well as that of the powerful international interests that underpin the ICC process. If a particular judge were to “step out of line”, for example, the bloc that sponsored him or her to the ICC would lose credibility and its ability to secure future appointments in international bodies would be deeply constrained.

The selection process for judges of the ICC is not an accident. It is flawed by design. The Rome Statute on the International Criminal Court could have applied the common practice which is applied around the world, and created a type of Judicial Service Commission that would receive applications from around the world and shortlist them. Thereafter, the ASP would act like the National Assembly in our system and approve the successful candidates from the shortlist.

The writers are Advocates of the High Court of Kenya