After four days of intense voting at the United Nations from February 3-7, the Assembly of States Parties to the Rome Statute of the International Criminal Court (ICC) elected an initial panel of 18 judges to preside over the world’s first permanent criminal court dedicated to prosecuting perpetrators of war crimes, genocide, and crimes against humanity. The judges will be sworn in March 11 in The Hague and the court is expected to begin its work by the end of 2003, exercising jurisdiction over crimes committed after July 1, 2002 when the Rome Statute entered into force.

Prior to the election of judges, supporters of the ICC were concerned that nations with candidates in the field would spend January horse-trading for votes. Emphasizing this point, Richard Dicker, Director of the International Justice Program at Human Rights Watch, stated, "the court's credibility and effectiveness depend on the election of 18 highly qualified judges. We call on states to set aside the business as usual of vote-dealing. Principle and merit should rule the day."

In an effort to ensure fair elections, a detailed voting procedure focusing on the need for representation of the principal legal systems, geographic distribution, and gender representation was established. Following a long and complicated voting process, the judges elected were: Ms. Elizabeth Odio Benito (Costa Rica); Mr. Rene Blattmann (Bolivia); Ms. Maureen Harding Clark (Ireland); Ms. Fatoumata Dembele Diarra (Mali); Mr. Adrian Fulford (United Kingdom); Mr. Karl Hudson-Phillips (Trinidad and Tobago); Mr. Claude Jorda (France); Mr. Hans-Peter Kaul (Germany); Mr. Philippe Kirsch (Canada); Mr. Erkki Kourula (Finland); Ms. Akua Kuenyehia (Ghana); Mr. Georghios Pikis (Cyprus); Ms. Navanethem Pillay (South Africa); Mr. Mauro Politi (Italy); Mr. Tuiloma Neroni Slade (Samoa); Mr. Sang-hyun Song (Republic of Korea); Ms. Sylvia Helena de Figueiredo Steiner (Brazil); and Ms. Anita Usacka (Latvia).

The final election results have been received with enthusiasm, not least because 7 of the 18 judges are women. “This is an unprecedented level of gender diversity in an international judicial institution. It really is a major leap forward and as a result there is a regionally diverse pool of highly qualified judges who will bring expertise to the work of the court,” said Pam Spees, Program Director of the Women’s Caucus for Gender Justice. Richard Dicker added that, “[These] elections have brought this court a giant step closer to reality. By electing so many seasoned criminal judges and lawyers, the member states of the ICC have signaled their commitment to an effective and fair court. With this bench, the court is likely to get off to a strong start.”

The choice of judges was especially crucial following the repudiation and boycott of the ICC by the United States. Supporters of the ICC believed that only if the strongest panel of judges is established can there be hope that a future US administration would consider ratifying the ICC treaty. United Nations spokesman Farhan Haq describes U.N Secretary General Kofi Annan’s hope regarding US participation: “The Secretary General’s hope is that, over time, when people see how the Court functions, see how effectively and fairly it can do its work, that those countries who have not chosen to participate in the court so far will decide that it’s actually appropriate to do so, and we’re hoping that would be the case for the United States, as well as other countries that are currently outside the court.”

Despite the election of the judges, one large hurdle remains: the court still needs to find a Prosecutor. The Assembly of States Parties agreed to extend the deadline and to re-open the nomination period for the position of Prosecutor from March 24 – April 4, 2003. The election of the Prosecutor will be held during the resumed meeting of the Assembly April 21 - 23, 2003. Despite the deadline being extended, States Parties are still trying to identify and reach consensus on outstanding candidates. “The postponement of the election for Prosecutor is disappointing in that it will delay the work of the Court,” said Fiona McKay, the Director of the International Justice Program at the Lawyers Committee for Human Rights, “but I cannot emphasize enough the importance of finding the ideal candidate.” Given the ability of the prosecutor to initiate cases, the decision of who it will be is critical for the court's credibility.

In the meantime, the Court continues to gain new members, including some countries where sporadic armed conflict is taking place. On February 10, 2003 Afghanistan became the 89th country to ratify the ICC Statute. As of May 1, 2003 Afghan warlords who commit war crimes, genocide and crimes against humanity can face prosecution by the ICC.

"This is a historic day for Afghanistan," said John Sifton, a researcher with Human Rights Watch. "For over two decades, perpetrators of war crimes and crimes against humanity in Afghanistan have enjoyed total impunity. On May 1, that impunity will formally end." Sifton applauded the Afghan government for joining the court: "It was tremendously courageous for the Afghan cabinet to ratify the ICC treaty. It is an important step not only for Afghanistan, but for improving justice worldwide."

At the same time, the Afghan government signed an immunity deal, known as an “Article 98 agreement”, with the United States. This pact gives US troops in Afghanistan immunity from being handed over to the International Criminal Court. The US has signed such immunity pacts with 17 other countries including: Djibouti, the Dominican Republic, El Salvador, Gambia, Honduras, India, Israel, the Marshall Islands, Mauritania, Micronesia, Nepal, Palau, Romania, Sri Lanka, Tajikistan and Uzbekistan.

While the ICC will not be able to demand that Afghanistan hand over US troops for prosecution, it will have authority over Afghan troops committing atrocities and over commanders who order them or fail to prevent atrocities. In addition the ICC jurisdiction will also apply to Afghan government officials and local military and police commanders, as well as armed insurgent groups, whether they are connected to the government or not. The ICC will only have the ability to prosecute crimes that Afghanistan is unwilling or unable to investigate or prosecute itself. In light of Afghanistan’s fragile peace as Stifton says, “The message to Afghanistan's warlords is clear: The international community, through the ICC, is watching you, and will bring you to justice if you commit atrocities."

Related chapters from Crimes of War: What the Public Should Know:

Genocide
Universal Jurisdiction
War Crimes
Crimes Against Humanity

Related Links

International Criminal Court

Coalition for the International Criminal Court

Questions and Answers about the ICC
Human Rights Watch

Afghanistan: Warlords Face International Criminal Court
Human Rights Watch
February 10, 2003

First 18 Judges Including Seven Women Elected to the ICC
UN Press
February 7, 2003

ICC: Electing Best Judges is Critical
New Court Poised to Start Business
Human Rights Watch
January 31, 2003

Nations Elect 18 Judges for Global Criminal Court
By Evelyn Leopold and Irwin Arief
Reuters, February 8, 2003

UN Assigns 18 Judges to International Criminal Court
By James Donahower
Voice of America News, February 11, 2003

The ICC's First False Step
By Darin R. Bartram and David B. Rivkin JR.
Wall Street Journal, February 17, 2003

Nominations for ICC Prosecutor Postponed
Lawyers Committee for Human Rights, December 16, 2002

The Election of Judges to the ICC
Lawyers Committee for Human Rights

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