Organizational Questions: Composition and Administration

of the Court

Chairman Bos announced that the delegate of Malaysia would chair a

group to consolidate texts on these issues.

ILC Article 5: Organs of the Court

Italy agreed with the ILC draft. See the Netherlands proposal

to include an investigative judge.

Article 6: Qualification and Election of Judges

6(1): A preliminary question for many delegations was what

qualification are needed to be elected a judge? The following

states emphasized that criminal law experience was more important

than international law experience: United States (especially for

trial chambers - int'l law easier to learn than criminal law),

United Kingdom (delete the 2 categories in art 6(1)), Israel

(suggested that 2/3 of trial chamber have criminal law experience

and in the Appeals Chamber it would be split 50/50 between

criminal law experience and int'l law experience.); Japan;

Australia; Netherlands, Argentina; Singapore, Canada,

Malta.

The following delegations stated that there was a need for more

flexibility in the statute and that Art 13 of the ICTY (duly take

into account in the makeup of the chambers the experience of

judges in criminal law and international law) was a good model to

follow for a balance between criminal law experience and

international law experience. Switzerland, Italy, Qatar,

China, Japan, Finland, Netherlands, Egypt. Russia also

argued that the criteria were too strict as did Australia.

Trinidad and Tobago stated that 6(1) was acceptable but could be

modified. 6(1)(a) "criminal trial experience" should include work

as an advocate or a member of the judiciary. U.K. agreed with

this as did Israel, Portugal, Argentina, Singapore.

Qatar stated that judges should be from the judicial system in

their own states because it will help to ensure their

independence. Also, criminal trial experience is very vague,

instead specify that the candidate have been a judge in a criminal

court or have 6 years as an advocate in front of the highest

criminal court is his state. No division needed between criminal

law experience and int'l law experience. Art 13 of the ICTY is

acceptable.

Denmark argued to eliminate the categories and to mention desired

criteria in order of importance. Venezuela stated that it was not

necessary to distinguish between criminal and int'l law

experience.

Lesotho argued that the distinction between criminal law

experience and int'l law experience is important. Judges should

have 1 or both. Int'l law experience should include experience in

int'l humanitarian law and int'l human rights law. India stated

that international law could NOT be learned in 6 months and that

experience in int'l humanitarian law or int'l human rights law

might be relevant although the trial chambers must be composed of

judges with criminal law experience. Ireland stated that the

court deserved the best judges and not judges who had learned

int'l law in 6 months.

Finland suggested separate elections of judges for the two

categories. Argentina disagreed with divided elections.

Portugal suggested that independence should be a characteristic

of the candidates for judge. Also, the idea in art. 6(1) that

judges should have the qualifications necessary in their own

countries for appointment to the highest judicial office won't

work because many states do not appoint their judges, they have

career judges. This idea would prevent none career judges from

these countries from serving on the ICC. Egypt also agreed with

this concern.

Portugal also suggested adding "and/or" between line (a) and line

(b) in art. 6(1) to allow for judges who have both criminal and

int'l law experience. Singapore agreed with this.

6(2) & (3): Trinidad and Tobago stated that judges could be of

any nationality but were elected by states parties to the ICC

treaty. Finland and Canada agreed with this. The United

States agreed that candidates from non states parties should be

allowed as did Lesotho, Thailand and Egypt. China stated that

they did not have a final position on this, but it would depend on

how many ratifications were needed. If a large number (60) were

needed then only states parties could elect judges because the

court would be universal, but if only a few ratifications (30)

were needed then the universality of the judges would be in

question if elected only by the states parties, therefore the U.N.

should elect the judges. Italy, however, felt that judges should

come from states parties and be elected by states parties. Israel,

Mexico, Australia, Portugal, Venezuela, Guatemala, Malta

agreed with Italy.

India prefers election by states parties over a nominating

committee. Denmark agrees with the ILC statute and judges can be

from non states parties.

The United States suggested a nominating committee of several

states parties who would nominate meritorious candidates for

confirmation by the majority of states parties. Argentina

suggested exploring this proposal.

The U.K. interested in nominating committee or nominations by

national groups as in the ICJ, and then election of judges by the

U.N. General Assembly. Netherlands would allow for judges from

non states parties and for election from the U.N. General

Assembly. Singapore agreed with the Netherlands.

Mexico stated that a quorum requirement for elections be included

in the statute and that 2/3 of the states parties present to be

elected.

6(3): Delegates had many different ideas as to how many judges

were necessary. Switzerland argues that for financial reasons

there should only be 15 judges, although they would prefer 12.

U.K. agreed 18 judges was too many (financing is an issue) and

suggested 14 or 15. Qatar agreed that 18 judges was too many.

Slovakia stated that 18 was the upper limit. Malaysia agreed

with Swiss proposal.

France proposed 24 judges (cost should be a secondary concern).

States parties would be able to elect temporary judges when

needed. Russia agreed with France. Singapore suggested 21

judges.

Trinidad and Tobago called for 18 judges as did Italy, Mexico,

Japan (depending on function of judges), Denmark, Venezuela.

The United States felt it was to early to decide on the number of

judges. Lesotho agreed with this as did Australia, Portugal

(could live with 18). India stated that the number of judges

would be dependent on substantive questions (ie the jurisdiction

of the ICC). Austria was flexible on the total number of judges.

6(4): Lesotho agrees with the ILC

6(5): Norway offered an amendment, along with Denmark,

Finland, Malawi and Sweden that gender balance should be

included as a criteria for judges and for the Procuracy (see art.

12). Italy thought this proposal should be considered as did

Australia. United States supports gender diversity and

representation of principle legal systems, but not a quota system.

Argentina and Malta agreed with U.S. The United Kingdom is

sympathetic to gender balance in the Procuracy, but not convinced

it should be included in the judiciary. India does not object to

the idea. Kuwait, Portugal, Netherlands, Argentina supports

the Norway proposal.

Russia stated that 6(5) was inadequate. Court needs to ensure

equitable geographic distribution among judges and

representation of the principle legal systems of the world.

Art.2 of the Law of the Sea Tribunal is a good guide. Equitable

geographic distribution and representation of major legal systems

was support by Trinidad and Tobago, Qatar, Lesotho, Malaysia,

Israel, Mexico, China, Pakistan, India, Australia, Ireland,

Kuwait, Venezuela, Thailand.

6(6): Trinidad and Tobago agreed with the ILC draft that judges

should serve for 9 year terms with no re-election, but may

continue to finish a case. The following delegates agreed with

this: France, Italy, Qatar, Lesotho, Israel, Mexico, Japan,

Finland, Australia, Venezuela, Argentina, Singapore.

The United States preferred a 6 year term with the possibility of

re-election, because there will not be a large pool of candidates

to draw from. Guatemala agreed with the U.S. Egypt prefers

shorter renewable terms. China stated a preference for a 9 year

term with the possibility of re-election.

Lesotho suggested exploring an age limit for judges. Finland,

Egypt and Denmark sympathized with the French proposal to limit

the age of judges when elected to 70. Australia thought it should

be considered. Singapore also thought it should be considered.

Art. 8 The Presidency

France stated that the judges will elect President and 4 Vice-

Presidents for 3 years.

Japan stated that the Presidency was too powerful and that there

should be a pre-trial chamber responsible for pre-trial issues,

such as warrants and admissibility, although this is not the same

as European investigative Chamber.

Art. 9 Chambers

Switzerland argued for 2 trial chambers of 3 judges each. A case

would be assigned to Chamber A and Chamber B would function as an

indictment chamber for that case and vice-versa for other cases.

There would be 1 Appeals Chamber of 3 judges including the

President. This would leave 3 judges in reserve. Germany

supports the Swiss proposal.

The French proposal called for 5-6 judges per chamber. An

Investigative Chamber presided over by 1st Vice-President with 2

other VPs; a Trial Chamber presided over by a VP with 4 other

judges;a Remand Chamber; an Appeals Chamber of a VP and 6 judges.

Chambers would be picked by lot with the President making sure

that the rules are not violated. The U.S. agreed with a neutral

system (lots) for choosing chambers. However, the U.K. preferred

the President to choose each trial chamber ad hoc for each case.

Italy preferred an Appeals Chamber with 5 judges, 2 trial chamber

with 3 judges each, and Investigation Chamber with 3 judges,

leaving 4 spare judges.

Austria suggested an Indictment Chamber (pre-trial monitor) with

3 judges working full-time. 2 Trial Chambers and 1 Appeals

Chamber.

Egypt suggests a permanent chamber of instruction (3 judges) to

handle all preliminary matters, and trial chambers with 3 judges.

Each chamber should have an alternative judge. Create a special

chamber to handle treaty crimes.

Singapore suggested an Appeals Chamber with 6 judges (3 criminal

experts and 3 int'l experts and a trial chamber with 5 judges (3

criminal experts).

The United States emphasized that the Trial and Appellate judges

should be separate groups in order for the appellate function to

work. NO rotation among chambers. The following delegate agreed

with this: U.K., Lesotho, Israel, Mexico, India, Australia,

Denmark, Austria, Egypt.

U.K. suggested an Appeals Chamber of President and 4 other judges,

2 trial chambers of 3 judges each and indictment chamber. They

stressed that there should be no rotation of judges between

chambers. Delete art 9(2) - Appellate judges remain appellate

judges for their entire term.

Art 10: Independence of the Judges

10(2) Italy agreed with the restrictions on Judges employment, but

the restrictions on executive branch employment should not include

work as a prosecutor.

Israel felt that restrictions on judges employment should be

tighter.

Lesotho stated that other jobs for the judges prejudices their

independence.

Egypt argued that part-time judges will be a problem if they can't

hold government jobs. Canada stated that part-time judges need to

be able to earn a living.

Ireland argued that part-time judges would not be fully dedicated

to the ICC and you couldn't expect them to not work in the legal

field.

Germany stated that judges might have to be paid full-time

because part-time judges will be problematic.

Thailand asked what happens if a judge becomes a member of the

executive branch of his government after he becomes a judge?

Article 11: Excusing and Disqualification of Judges

Israel stated that a party requesting disqualification of a judge

should supply supporting documentation.

Finland supports the ILC strict rules.

Art. 12 The Procuracy

Israel stated that the Procuracy cannot be independent and an

organ of the Court.

Finland stated that more elaborate rules were needed for the

Procuracy.

Article 19: Rules of the Court

Denmark is pleased with the ILC draft - Court adopts rules, but

states parties ratify them. Even if the states parties enact rules

with the statute, Denmark supports the ability of the Court to

amend the rules if needed.

Venezuela stated that the Rules should be in the Statute or

enacted with it.

United States expressed a need for an amendment procedure and for

a continuing state assembly or smaller council.

Venezuela stated that states parties must be involved in the

management of the ICC.

Egypt stated that these issues could not be finalized until more

substantive issues had been resolved. In addition, a feasibility

study should be done. If ICTY and ICTR are the models then an ICC

might cost $60 to $70 million a year.