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 Draft Letter to Ministries and Missions Regarding Election of Judges to the International Criminal Court
 Women's Caucus for Gender Justice, international
 June 1, 2002
 

Re: ICC Election Procedures

Dear Madame/Sir,

We are writing to express our serious concerns regarding the negotiations at the Ninth Session of the Preparatory Commission for the International Criminal Court relating to the elections of judges, prosecutor and deputy prosecutors.

As you know, on 11 April 2002 the Rome Statute obtained the required number of ratifications for entry into force on 1 July 2002, a moment we are very much hoping will signal an end to impunity for crimes committed predominately against women which have long been overlooked by the international justice mechanisms of the past.

We are very concerned, however, that immediately in the wake of this historic occasion, there seemed to be less real commitment at the Ninth session to carry forward the gender mainstreaming mandates of the Rome Statute when it comes to the elections of judges and other posts. The ICC will be the first international institution of the 21st century, indeed of the new millennium, established by multi-lateral treaty and is the first of its kind. It is time, finally, that women be accorded a presence in such institutions on an equitable footing.

You have a historic opportunity to ensure that the ICC is standard-setting with respect to a presence of women on the Court. Doing so will only increase its esteem and prestige in the world. In light of this, we demand the following:

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. That an advisory committee be established in accordance with article 36(4)(c) which would be comprised of experts and members of civil society so as to avoid the possibility or appearance of bias on the part of delegates representing their countries in the Assembly of States Parties;

5. That the advisory committee 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.

We expect that our delegation to the Preparatory Commission will actively participate in the resolution of these matters toward a satisfactory and non-discriminatory outcome in furtherance of the aims of the Rome Statute.

Signed,

For a listing of contact information for UN Missions, see Permanent Missions to the United Nations.

For a listing of contact information for Foreign Ministries in the capitals, see Worldwide Governments on the WWW.

Please forward a copy of your letters also to the Women's Caucus for Gender Justice.

Background Paper

Though the ICC will not be a part of the United Nations, we know from experience of monitoring elections for similar posts in the UN system that the need for fair representation of women and men is not taken seriously in the elections, which are also often highly suspect in terms of the vote-trading that accompanies these elections.

As a result, the presence of women in the international posts has been appallingly low. Due to the nature of these processes it has also often been difficult for NGO's to monitor the elections and evaluate the background of candidates. An added problem is that qualified women are very rarely informed about the opportunities of the posts at the international level or of the process of nomination at the national level.

Some examples:

Only one woman has ever served as a judge on the International Court of Justice throughout its more than 80-year history.

The 34-member International Law Commission had no women throughout its 55-year history until late last year at which time two women were elected.

In the ad hoc tribunals for the former Yugoslavia and Rwanda there have been at most 3 women serving at any one time among the 14 permanent judges.

Currently, at the ICTY, there is only one woman serving as a permanent judge.

The ICC will be the first major international institution of the 21st century—indeed of this millennium—developed via multilateral treaty. The shapers of this historic institution must continue to take bold strides in ensuring that women, who make up half the world's population, are finally guaranteed an equitable presence in such institutions. It is no longer acceptable to abide the reluctance of states to nominate women or to blame the lack of appropriate female representation on the myth that there is a lack of qualified women.

In the same way that the ICC, as an independent and impartial mechanism, is intended to be a fairer and more democratic judicial institution as a counter to the abusive rule of raw power in the world, so it must also counter the effects of power disparities between women and men through its procedures and practices. This, along with appropriate geographical representation, is critical to ensuring the Court's legitimacy among the peoples of the world—which, though it seems obvious, includes women.

In the ICC context, the Women's Caucus is advocating that "fair representation" be understood as parity of women and men, meaning a margin of 45-55 percent either way. We are also arguing that there is an obligation to develop mechanisms in the election process that ensure parity in the outcome of the elections. While a parity of women and men on the Court is an overarching principle and a critical part of a full-fledged commitment to non-discrimination on the basis of gender, the Statute also mandates the presence of judges, male or female, with legal expertise on specific issues including violence against women and children.

This moment presents an opportunity to break from the old patterns that have prevented women from participating on an equal footing in our international institutions. Please take the time to forward these concerns to your relevant officials and parliamentarians. At the same time, we urge those of you in countries that have ratified the ICC to contact your foreign ministries to find out whether and how the nomination process will proceed and also whether candidates have already been identified and demand that women candidates be considered and put forward. It is expected that the first meeting of the Assembly of States Parties will be held in September 2002 at which time the nomination process will open. It will then likely close some time in late October and the first elections of the full panel of 18 judges will be held in January 2003.

Among the goals of the Women’s Caucus for Gender Justice is to ensure a worldwide participation of women's human rights advocates in the negotiations of the ICC treaty to lobby for an effective and independent court.

A draft letter and background paper developed by the Women's Caucus for Gender Justice, regarding the forthcoming election of judges to the International Criminal Court.