Election Rules for ICC Judges: A Balanced Bench Through Quasi-Quotas

At its 16th session starting today (Monday 4 December) in New York, the ICC Assembly of States Parties (ASP) will proceed to elect six new judges for the Court. In doing so, the ASP will follow a special procedure that has no precedent in any other international organization, and probably also not in any domestic context. Among the election officers of ICC States Parties, these rules are primarily known for being complicated, to put it mildly. What gets less attention though is the fact that these rules have also been quite successful in achieving their goal: namely of nudging States Parties toward electing a bench of judges that is balanced in terms of regional representation, gender, and legal expertise.

In previous years, I have had the pleasure of facilitating the review of these rules (which resulted in only minor adjustments). In that context, I was tasked to prepare an informal guide to the election rules, so that they could be more easily understood. Pasted below is the brief explanation of the election procedure contained in the guide, which also contains a more detailed commentary of specific provisions.

The idea behind the system (originally developed by my predecessor as legal advisor to the Mission of Liechtenstein in New York, Jonathan Huston) is quite intriguing. It came up as delegations at the ICC PrepComm – tasked with preparing the ground for the future sessions oft he ASP – were deeply divided over how to design the election rules for judges. Some wanted quotas for regions (as is the case for many UN bodies), some wanted additional gender quotas. Others wanted no such restrictions. And then there was also the binding requirement of the Rome Statute to elect a minimum number of judges with certain expertise (criminal law vs. International law).

To break the stalemate, Jonathan came up with the concept of “minimum voting requirements”. The trick goes as follows: quotas are not applied to the result (e.g. 50% of judges must be men/women), but quotas are applied to the voting process (e.g. States must vote for at least x men/women out of y candidates). This does not guarantee a balanced result, but makes such a result more likely, while giving greater freedom of choice to those voting compared to result-based quotas.

I think there can be no doubt that the rules have contributed to an overall balanced bench of ICC judges over the years. For example, no other international tribunal has ever had such a high ratio of female judges. This has even led to the situation that male judges were at risk of being underrepresented, which at the 2011 elections led to affirmative action for male candidates (!).

At the current election, by the way, five of the six outgoing judges are female. In order to prevent female under-representation, States Parties will therefore have to cast five of their six votes for women. This will make it quite likely that the bench of 18 judges will again be balanced in terms of gender.

Here’s the “executive summary” of the election guide:

The goal: a balanced bench of highly qualified judges

1. Every three years, the Assembly of States Parties (“Assembly”) proceeds to replace one third of the 18 judges of the Court, electing 6 new judges for non-renewable terms of 9 years. The nomination and election of judges is governed by a unique procedure that aims to ensure, as much as possible, that the bench of judges be balanced with respect to three criteria:

(a)  legal expertise (list A/B);

(b)  region; and

(c)  gender.

The tool: affirmative action through minimum voting requirements (MVRs)

2. The primary tool to achieve this goal is the use of the so-called minimum voting requirements (MVRs). The MVRs are brief, binding instructions that States Parties must follow when filling out ballot papers. They could for example read as follows:

(a)  vote for at least 2 candidates from Group X;

(b)  vote for at least 1 male candidate; and

(c)  vote for at least 1 candidate from list A.

3. The MVRs make it more likely that candidates that fulfill underrepresented criteria are elected, but – different from outcome quotas – they do not guarantee such an outcome. This is because the MVRs channel some of the votes to certain underrepresented criteria, but that in itself does not guarantee that any particular candidate receives the required two-thirds majority.

4. This is in keeping with the negotiation history of the MVRs, which were proposed as a compromise between those delegations that preferred fixed quotas (especially for regions, as is the case in many other elections) and those that preferred unrestricted elections.

The flipside: no clean slate

5. The MVRs have built-in rules that generally make sure that States Parties, when instructed to vote for candidates from a certain region or gender, are not forced to vote for a specific candidate. For example, the instruction “vote for at least 1 candidate from region X” only applies if there are at least 2 candidates from that region. In other words, underrepresented regions only benefit from affirmative action if they provide a real choice by nominating a certain minimum number of candidates. The same principle applies to any underrepresented gender.

The special one: even stricter rules for list A/B criterion

6. As mentioned above, the MVR system also applies to the two types of legal expertise that should be represented on the bench (list A: criminal law; list B: international law). The MVRs make it more likely that a sufficient number of candidates belonging to any underrepresented list be elected – but it does not guarantee so. This could lead to problematic results, since article 36(5) of the Rome Statute requires that at least 9 judges shall be elected from list A, and at least 5 from list B. Therefore, the procedure contains an “emergency brake” that guarantees that any election is not tilted too far toward either list A or list B. No such minimum quotas are proscribed in the Rome Statute for region and gender, making the list A/B criterion stand out.

The catch: MVRs for region and gender only during the first four rounds

7. The MVRs for region and gender apply only during the first four rounds. This number is not derived from any particular mathematical logic, but is simply a compromise that was struck to accommodate those delegations that preferred a less restricted election procedure. The MVRs for list A/B, however, are not limited to the first four rounds. They apply until the requirement of article 36(5) is fulfilled.

The fast track: judicial vacancies

8. The rules also determine how to proceed in case a judicial vacancy arises. This procedure is designed to be faster: Generally within about five months, a special election is organized to help the Court cope with the unexpected vacancy. The MVR system fully applies to such elections, with even stricter requirements: only candidates that fulfill underrepresented criteria, if any, may appear on the ballot paper. This may seem restrictive at first sight, but was also a compromise considering the practice in some other international bodies (which is often to keep the position with the same country that lost “its” member). Should the vacancy occur at a time when regular elections are being prepared, then the vacancy election can be held at the same Assembly session, thus benefitting from the existing pool of candidates running for election.

The problem: it’s complicated (primarily for the President)

9. The main drawback of the MRV system is that it can be complicated. The MVRs need to be calculated at various stages of the procedure: at the opening of the nomination period (to alert States Parties to underrepresented criteria, thus encouraging them to nominate candidates accordingly), at the end of the nomination period (in order to decide whether the period should be extended to encourage further nominations), and before each round of balloting (in order to print instructions for States Parties on the ballot papers). This calculation can be complex, given that the relevant rules are formulated in very generic terms and address a number of hypothetical scenarios. To make this determination is the responsibility of the President of the Assembly, with the assistance of the Secretariat.

The solution (primarily for States Parties): follow instructions

10. While the MVR system is somewhat complicated, this primarily poses a challenge for the President of the Assembly (supported by the Secretariat), as she or he is in charge of calculating the MVRs.

11. States Parties, in turn, mainly have the responsibility of following the instructions on the ballot paper itself. These instructions are not nearly as complicated as the rules themselves; in fact, they are typically rather straightforward (see the example above).

12. Ballot papers that do not follow all the instructions will be declared invalid. This is why the President of the Assembly, during each round of balloting, gives enough time to delegations to check if they cast their vote accurately.

The frustration: the duration

13.  Elections of judges have in the past often required many rounds of balloting. The main reason for this is the fact that candidates must reach a two-thirds majority to be elected. This can be a very high threshold to reach in a field of multiple candidates. This requirement stems directly from the Rome Statute (article 36(6)) and could only be changed through an amendment to the Statute (to be ratified by at least seven eighths of States Parties), which could in itself be an extremely lengthy process.

14. The MVRs actually speed up the process to some extent, since they channel votes to certain groups of candidates – but they generally only apply during the first four rounds. After the fourth round, a cut-off mechanism kicks in: The candidate having received the lowest number of votes is automatically removed from the subsequent ballot.