Open Letter to Delegates at the 9th Session of the ICC PrepCom Concerning the Nomination and Election of Judges, Prosecutor and Deputy Prosecutors
The Women’s Caucus for Gender Justice has noted with concern a lack of serious attention in this session of the Preparatory Commission to the need to ensure fair representation of women and men in the negotiations toward procedures for the nomination and election of judges and other officials of the Court.
The Rome Statute has set new standards for the architecture of justice. This trend must continue as deliberately and purposefully as it has in the past into the development of procedures that will help ensure the Court’s mandates are carried out. We must insist that delegates at the Ninth and Tenth sessions of the ICC Preparatory Commission put their creativity and efforts once again to the task of ensuring that this Court will be one in which the peoples of the world – half of whom are women - can place their trust.
Because so little attention has been paid to ensuring a presence of women in international posts, there are few models to refer to. Thus, it is all the more urgent that delegates in this arena develop appropriate and concrete rules that will ensure a parity of women and men on the Court from the very beginning.
We are aware of the arguments often put forward as reasons for the lack of women in international posts. Some of these arguments place the fault on the part of States where women are routinely underrepresented. Other arguments are more disingenuous and attribute the lack of women to a general lack of qualified women. Often a response to those seeking fair representation is to let the process take care of itself in the expectation that one day women will ascend as easily to these posts as men. Such arguments are no longer acceptable or tolerable. While States Parties to the Rome Statute have the primary and sole responsibility for selecting their candidates, the Assembly of States Parties must not be complicit in a predictable imbalance of women and men on the Court. Rather, the Assembly of States Parties of this historic institution must take proactive and deliberate steps to help ensure that States Parties will put their best efforts to seeking out and nominating qualified women.
Women all over the world are watching to see how these critical negotiations deal with this fundamental issue. The following are priority concerns relating to the procedures that will govern the nomination and election of judges, prosecutor and deputy prosecutors…
1. That "fair representation of female and male" in article 36(8)(a) of the Rome Statute be explicitly recognized as parity of women and men. In the context of the ICC this would amount to at least 8 men or women on the Court. This is not a quota - it is what is fair given that women make up half the world's population. It amounts to a margin of 45-55 percent either way. Anything less than this would replicate the systemic discrimination on the basis of gender in this new institution;
2. That a mechanism be developed and included in the rules of procedures relating to elections that will ensure this fair representation in the outcome of the elections;
3. That the election procedures be fully transparent and provide ample opportunity for a thorough review of candidate's qualifications and background;
4. We realize that due to time constraints and the complexities of the first election that provisional measure or committee may be put in place to oversee the election. As general matter, however, we support the establishment of an advisory committee in accordance with article 36(4)(c) which would be comprised of experts and members of civil society so as to avoid on the possibility or appearance of bias on the part of delegates representing their countries in the Assembly of States Parties;
5. That the provisional committee charged with overseeing the process be authorized to extend the nomination period in the event the pool of candidates does not reflect the balances required by the Statute and rules;
6. That the advisory committee also be authorized to nullify the nomination round and open a new one in the event that the balances required by the Statute and rules are not met and an extension would not facilitate such a balance;
7. That the election procedures also ensure a presence of judges on the Court, whether female or male, with legal expertise on violence against women and violence against children, pursuant to article 36(8)(b) of the Rome Statute.
Source: Women's Caucus Advocacy in ICC Negociations, Open Letter To Delegates At The Ninth Session Of The Preparatory Commission For The International Criminal Court, April 2002.
International Criminal Court
This document has been published on 30Sep02 by the Equipo Nizkor and Derechos Human Rights