The judges elected at this session were to replace those six judges who were elected at the first election of ICC judges in 2003 for a full term of nine years; they were also to serve for nine years until 2021.
The election was governed by the Rome Statute of the International Criminal Court. Its article 36(8)(a) states that "[t]he States Parties shall, in the selection of judges, take into account the need, within the membership of the Court, for:
(i) The representation of the principal legal systems of the world;
(ii) Equitable geographical representation; and
(iii) A fair representation of female and male judges."
Furthermore, article 36(3)(b) and 36(5) provide for two lists:
List A contains those judges that "[h]ave established competence in criminal law and procedure, and the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings";
List B contains those who "[h]ave established competence in relevant areas of international law such as international humanitarian law and the law of human rights, and extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court".
Each candidate had to belong to exactly one list.
Further rules of election were adopted by a resolution of the Assembly of States Parties in 2004.[2]
Judges remaining in office
The following judges were scheduled to remain in office beyond 2012:[3]
The nomination period of judges for the 2011 election lasted from 13 June to 2 September 2011[4] and was extended once until 16 September 2011 due to the lack of candidates from one regional group.[5] The following persons were nominated:[6]
The nomination period could have been extended for a maximum of six weeks (it was once), two at a time, if there had not been nominated at least twice as many candidates for each criterion as necessary.
Minimum voting requirements governed part of the election. This was to ensure that article 36(8)(a) cited above was fulfilled. For this election, the following minimum voting requirements initially existed; they were to be adjusted once the election was underway.
Regarding the List A or B requirement, States Parties had to vote for three candidates from list A in the first round of voting. There was no minimum voting requirement for candidates from list B, as enough judges from that list remained on the bench.
Regarding the regional criteria, initially there were minimal voting requirements for two regional groups: One vote had to be cast for an Eastern European State and two for Latin American and Caribbean States. On 13 October 2011, the Bureau of the ASP notified States Parties of the application of Paragraph 20 (b) of Resolution ICC-ASP/3/Res.6. The membership of the Maldives as the 17th Asian ICC member state triggered an increase in the corresponding minimum voting requirement. Accordingly, four votes initially had to be cast according to regional minimum voting requirements – one for an Asian State, one for an Eastern European State, and two for Latin American and Caribbean States states. There was no minimum voting requirement for judges from African and Western European and other states, as enough judges from these regional groups remained on the bench.
Regarding the gender criteria, there was no minimum voting requirement for female judges. States Parties had to vote for two male candidates in the first round of voting.
The regional and gender criteria could have been adjusted even before the election depending on the number of candidates. Paragraph 20(b) of the ASP resolution that governs the elections states that if there are fewer than twice the number of candidates required for a region, the corresponding minimum voting requirement is half the number of candidates (rounded up), except if there is only one candidate, which results in no voting requirement. Furthermore, if the number of candidates of one gender is less than ten, then the minimum voting requirement is limited to a certain number depending on the number of candidates.
The regional and gender criteria are to be dropped if they are not (jointly) possible anymore, and in any case after the fourth ballot.
Given the nominations (already taking into account the withdrawal of Ajmi Bel Haj Hamouda which did not change the result, however), the initial minimum voting requirements were as follows:[7]
Criterion
Number of judges required
Number of judges remaining in office
Voting requirement ex ante
Number of candidates
Adjusted voting requirement
Adjusted requirement equals ex ante?
Lists A or B
List A
9
6
3
15
3
Yes
List B
5
6
0
3
0
Yes
Regional criteria
African states
3
3
0
7
0
Yes
Asian states
3
2
1
2
1
Yes
Eastern European states
3
2
1
2
1
Yes
Latin American and Caribbean States
3
1
2
5
2
Yes
Western European and other States
3
4
0
2
0
Yes
Gender criteria
Female
6
8
0
2
0
Yes
Male
6
4
2
16
2
Yes
Campaign on International Criminal Court Elections
Because of the importance of qualified and impartial judges, NGOs have taken a particular interest in the ICC judges election.[8] The "Campaign on International Criminal Court Elections" was launched to promote the nomination and election of the most highly qualified officials through fair, merit-based, and transparent processes. This Campaign is sponsored by the Coalition for the International Criminal Court, a group of NGOs. Among other things, the Coalition is strongly opposed to "vote-trading" among States Parties.[9] In December 2010, the Coalition established an Independent Panel on International Criminal Court Judicial Elections. The panel was to "issue a report containing an assessment of each judicial candidate as 'Qualified' or 'Not Qualified' after the closing of the nomination period and in advance of the December 2011 elections."[10] The members of the panel were:[10]
On 26 October 2011, the Panel published a report[11] in which it assessed the candidates in regard to their qualification to serve as a judge on the ICC in their respective list. All nominees except for Ajmi Bel Haj Hamouda, Javier Laynez Potisek, George A. Serghides and Jorge Antonio Urbina Ortega were assessed as qualified.
After the first ballot, minimum voting requirement for Asian States dropped to zero. The list A minimum voting requirement dropped to two, the Latin American and Caribbean States (GRULAC) minimum voting requirement dropped to one and the male candidates minimum voting requirement dropped to one, as well. The Eastern European States minimum voting requirement remained at one.
After the second ballot, the minimum voting requirement for Eastern European States dropped to zero, as did the one for male candidates. The list A minimum voting requirement dropped to one while the GRULAC requirement remained at one.
After no new judges were elected during the third and fourth ballot, the GRULAC minimum voting requirement was abandoned. Only the list A minimum voting requirement (one judge) remained in place until such a judge was elected.
The minimum voting requirements are imposed on the ballots cast, not on the results. Thus, there is no guarantee that a corresponding number of judges is elected. However, in this election this was the case:
Criterion
Initial minimal voting requirement
Corresponding number of judges elected?
List A
3
Yes, after 12th ballot
Asian
1
Yes, after 1st ballot
Eastern European
1
Yes, after 2nd ballot
Latin American and Caribbean
2
Yes, after 12th ballot
Male
2
Yes, after 2nd ballot
Note that the regional minimum voting requirement was dropped after the 4th ballot and was thus no longer being imposed when a second Latin American and Caribbean judge was elected in the 12th ballot.
