Electing Judges and Prosecutors of the International Criminal Court: A Reappraisal of the Practice through the Lenses of Transparency and Legitimacy

Abstract

This article – seizing the occasion of the election of six new judges and of the third Prosecutor of the International Criminal Court (ICC) at the Assembly of States Parties’ (ASP) 19th session of late 2020 and early 2021 – aims at reassessing the practice of States and of the ASP in the nomination and election of judges and prosecutors, reflecting on its impact on the (perception of) legitimacy of the Court. The article will analyze the trends and changes in this practice over the years in relation to the challenges faced by the Court, including the practical ones posed by the COVID-19 pandemic that have impacted on the last election. Moreover, it shall assess the effectiveness of reforms aimed at establishing a more transparent nomination and election process, which have only partially contributed to strengthening the perception of legitimacy of the institution and have left some States unsatisfied with the screening of candidates carried out by the advisory bodies established by the ASP and the Bureau. The article concludes with a few proposals to enhance the nomination and election process, mainly through non-invasive measures, in the belief that far-reaching reforms of the Statute are unlikely to be adopted in the near future, and that States’ interests and political considerations cannot (and probably should not) be entirely eschewed from the process.