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The International Criminal Court has its first judges

Feature Articles

Cite as: (2003) 77(4) LIJ, p.62

The International Criminal Court's 18 judges have been selected and the Court inaugurated in a ceremony at The Hague last month.

By Paula Gerber

In February this year, the 85 states that have ratified the Rome Statute establishing the International Criminal Court (ICC) went through the arduous process of selecting the judges that will sit on the Court. The ICC is the first permanent venue for the prosecution of individuals accused of atrocities such as genocide, war crimes and crimes against humanity. The ICC has jurisdiction over crimes committed after 1 July 2002, but is not expected to be fully operational until the end of this year.

THE SELECTION PROCESS

There were 43 candidates (including 10 women) nominated for 18 positions on the ICC Bench, although sadly none from Australia as the federal government declined to nominate anyone. The task for the selectors based at the UN headquarters in New York was a challenging one as they endeavoured to appoint not only first-rate legal experts but also ensure that the judges:

  • came from geographically diverse regions;
  • included international law experts and criminal law experts; and
  • included a “fair representation” of male and female judges.

In the end, seven of the 18 judges appointed were women which compares favourably to other international tribunals such as the International Court of Justice (ICJ) which has had only one female judge in its long history. Judges were appointed from each of the five specified regions, but Eastern European and Middle Eastern countries are woefully under-represented and almost half the judges come from Western Europe. The exact geographic breakdown is set out below.

Geographic region/Number of judges

Africa

3

Asia

3

Eastern Europe

1

Latin America and the Caribbean

4

Western Europe and other states

7

The judges will serve varying terms. A random drawing of lots was used to appoint six judges for three-year terms, six judges for six-year terms and the final six judges for nine-year terms. Eventually, all judges will serve nine-year, non-renewable terms.

The new judges were to be sworn in by Queen Beatrix of The Netherlands when the ICC was inaugurated in The Hague on 11 March and immediately thereafter the judges were to hold their first organisational meeting to elect the President of the Court.

THE JUDGES

The newly-elected judges are (in alphabetical order):

René Blattmann – Bolivia (six years)
Professor Blattmann began his career as an attorney in 1973. Since then he has had a distinguished career as both an academic and a politician. He has been a Professor of Criminal Law and International Law and has also been the Minister for Justice and Human Rights of Bolivia. He has been involved with the work of the UN including heading up the human rights and justice section of a Verification Mission to Guatemala.

He has received many awards, including an honorary doctorate from the University of Basle, Switzerland.

Maureen Harding Clark – Ireland (nine years)
Ms Clark is one of Ireland’s leading women criminal lawyers, having been at the Bar for 26 years. She was appointed Senior Counsel in 1991 and has worked as both a prosecutor and defence counsel. She currently serves as a judge on the International Criminal Tribunal for the Former Yugoslavia. She has experience in criminal and international humanitarian law, and particular expertise in the area of sexual and other violent offences against women and children.

Fatoumata Dembele Diarra – Mali (nine years)
Since September 2001, Ms Diarra has been a judge with the International Criminal Tribunal for the Former Yugoslavia. Before taking up that appointment she was president of the Criminal Chamber of the Bamako Appeals Court. In her long legal career she has been a prosecutor, legislative secretary at the National Assembly of Mali, an investigative judge on three separate inquiries and vice-president of the Labour Court.

She has been a strong advocate and activist for women’s rights and was instrumental in establishing legal aid offices in Mali for women and children. She has participated in several sessions of the UN Commission on the Status of Women.

Adrian Fulford – UK (nine years)
Mr Fulford has been a Crown Court judge since 1996. Before that appointment he was a QC specialising in criminal law. He has published numerous articles and texts on criminal law topics and is joint editor of the United Kingdom Human Rights Reports.

Mr Fulford’s appointment is noteworthy because it is the first time an openly gay judge has been elected to an international judicial body.

Karl T Hudson-Phillips – Trinidad and Tobago (nine years)
Mr Hudson-Phillips has 43 years experience as a criminal and constitutional law barrister. He was educated at the University of Cambridge and admitted to the Bar in 1959. In 1970 he was appointed Queen’s Counsel. From 1969-1973 he was Attorney-General and Minister for Legal Affairs. Since 1999 he has been president of the Law Association of Trinidad and Tobago.

Claude Jorda – France (six years)
Mr Jorda was prosecutor-general of the Court of Appeals firstly in Bordeaux and later in Paris. In 1994 he was appointed as a judge of the International Criminal Tribunal of the Former Yugoslavia and is currently its president.

From 1996-1997 he was a Fellow at the Institut d’Etudes Judiciaries at the University of Monteesquieu-Bordeaux responsible for teaching international criminal law and human rights. He has also been involved in various international judicial training programs including missions to Chile, Guatemala, Egypt and Algeria.

He was the last of the 18 judges to be elected to the ICC after Croatia withdrew its nominee.

Hans-Peter Kaul – Germany (three years)
From 1996-2002 Mr Kaul was director of the Office for Public International Law at the Federal Foreign Office. In this capacity he was responsible for a number of cases before the ICJ.

He was part of the German delegation that was involved in drafting the Rome Statute that established the ICC. He has published many commentaries on the ICC and its jurisdiction.

He has been a member of Germany’s Permanent Mission to the UN and worked in the German embassies in America, Israel and Norway.

Philippe Kirsch – Canada (six years)
Mr Kirsch was appointed Queen’s Counsel in 1988. Since 1999 he has been the Canadian ambassador to Sweden. Before that he was Assistant Deputy Minister for Legal and Consular Affairs within the Department of Foreign Affairs and International Trade. From 1988-1992 he was Canada’s ambassador/permanent representative to the UN in New York. From 1999-2002 he was chairman of the Preparatory Commission for the ICC.

Erkki Kourula – Finland (three years)
Mr Kourula is currently director-general for legal affairs in the Ministry of Foreign Affairs. Before this he was Finland’s ambassador to the Council of Europe and also part of Finland’s Permanent Mission to the UN. Before taking up these government positions, Mr Kourula was a district judge and also Professor of International Law at the University of Lapland.

He has a PhD from Oxford where he completed his doctoral thesis on The Identification and Characteristics of Regional Arrangements for the Purpose of the United Nations Charter.

Akua Kuenyehia – Ghana (three years)
Professor Kuenyehia was recently elected as a member of the UN Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW). She was called to the Ghana Bar in 1970, but has been working in the Law School of the University of Ghana for several decades and since April 2001 has been acting director of the Law School. She has taught courses on international law, criminal law, gender and the law and international human rights law.

Elizabeth Odio Benito – Costa Rica (nine years)
Ms Odio Benito was actually nominated by Panama after the President of Costa Rica refused to nominate her. From 1998-2002 she was Second Vice-President of the Republic of Costa Rica as well as Minister of the Environment and Energy. Before that she was the Attorney-General and twice Minister of Justice. In addition she has been a Professor of Law at the University of Costa Rica for more than 25 years.

In 1993 she was elected as a judge of the International Criminal Tribunal for the Former Yugoslavia and served there until 1998. She was also its vice-president from 1993-1995. She was Costa Rica’s delegate to the UN Conference on Human Rights in Vienna in 1993.

Gheorghios M Pikis – Cyprus (six years)
Mr Pikis began his judicial career as a District Court judge in 1966. Since 1981 he has been a judge of the Supreme Court of Cyprus and president of that Court since 1995.

He has twice served as an ad hoc judge to the European Court of Human Rights. From 1996-1998 he was an elected member of the UN Committee Against Torture.

He is the author of two legal texts and co-author of a third.

Navanethem Pillay – South Africa (six years)
Ms Pillay has been a judge of the International Criminal Tribunal for Rwanda since June 1995 and its president since 1999. Before her departure to Rwanda she was an acting judge of the High Court of South Africa. She has a history of “firsts” – in 1967 she was the first woman to start a law practice in Natal province where she provided legal defences for anti-apartheid activists and trade unionists. She was also the first black woman to serve on the Bench in South Africa.

She has participated in many UN activities including the Expert Group on Gender Persecution and the Expert Group on Refugees.

She has both an LLM and a Doctorate of Juridical Science from Harvard University. Her thesis was entitled The Political Role of the South African Judiciary.

Mauro Politi – Italy (six years)
Since 1990 Mr Politi has been a Professor of International Law at the University of Trento. He also has a distinguished judicial career which began as a judge of the Tribunal of Florence in 1969 and reached the level of appellate judge in 1983. In 2001 he was elected as a judge of the International Criminal Tribunal for the Former Yugoslavia.

He has been a member of various Italian delegations to treaty drafting conferences and permanent missions to the UN including the preparatory meetings relating to the creation of the ICC.

Tuiloma Neroni Slade – Samoa (three years)
Mr Slade began his career in private practice as a barrister and solicitor in Wellington, New Zealand. In the 1970s he moved into politics, becoming Attorney-General of Samoa. He is currently Samoa’s ambassador/ permanent representative to the UN. Before that he was ambassador to the US and before that the High Commissioner to Canada.

Mr Slade has extensive experience in a variety of international law fields having been chairman of the South Pacific Forum Seminar on Nuclear Issues, vice-president of the Conference of the Parties to the UN Framework Convention on Climate Change, a member of the Commonwealth Observer Group for the Sierra Leone general elections and counsel for Samoa before the ICJ in requests for advisory opinions.

Sang-hyun Song – Republic of Korea (three years)
Professor Song has been a faculty member of the Seoul National University Law School since 1972. He was a Fulbright Fellow at Tulane Law School where he earned his LLM. He also completed a Doctorate of Juridical Science at Cornell University and a Diploma in Comparative Legal Studies at Cambridge University.

He has lectured extensively in the US and is the author of four legal texts. Before embarking on his academic career Mr Song was a military prosecutor and later judge in the Korean army.

Sylvia Steiner – Brazil (nine years)
Ms Steiner has served as a judge in the Federal Court of Appeals of Sao Paulo since 1995. Prior to that she was a prosecutor of the same court for 13 years. She is the author of the book The American Convention on Human Rights and its Integration to the Brazilian Criminal Process which was published in 2000.

Ms Steiner was a member of the Brazilian delegation to the Preparatory Commission for the ICC.

Anita Usacka – Latvia (three years)
Ms Usacka has been a judge of the Constitutional Court of Latvia since 1996. Before taking a seat on the Bench she had a varied career including periods as a postgraduate student at the Faculty of Law at the Moscow State University, a law professor at the University of Latvia and executive director of the Latvian branch of UNICEF.

Her nomination to the ICC was supported not only by the Latvian government but also by the International Association of Women Judges and the Centre for Women’s Global Leadership.

CONCLUSION

The world will await with interest the first judgments from this diverse range of new ICC judges. Their backgrounds as academics, judges, government ministers and senior barristers will no doubt equip them well for the challenging tasks that lie ahead of them.

The other senior position within the ICC that has yet to be filled is that of prosecutor. The nomination period is from 24 March to 4 April with the election taking place between 21-23 April.


PAULA GERBER is a Senior Fellow, Law School, University of Melbourne and consultant with Lander & Rogers. She is currently undertaking a PhD at the University of Melbourne. Her thesis is looking at the implementation of international law mandating that children receive human rights education. In addition to her studies, she teaches in the University of Melbourne graduate law program and has taught international human rights law at the University of Prishtina, Kosovo.

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