The judges elected at this session replaced six judges whose terms ended in 2021. Four of those judges had been elected in 2011 for full nine-year terms; the other two had been elected in separate elections in 2013 and in 2015 to replace two judges elected in 2011 who had resigned. The newly elected judges will serve for nine years until 2030.
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 has to belong to exactly one list. A minimum of nine judges elected from list A and five judges elected from list B is to be maintained on the court.
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 2021:[3]
The nomination period of judges for the 2020 election lasted from 6 January to 30 March 2020.[1] It was first extended to 30 April on an emergency basis due to the COVID-19 pandemic[4] and then extended once more on a regular basis because the required number of Asian and Eastern European candidates had not been nominated.[5] A second Eastern European candidate was nominated during this second extension period, but no further Asian candidates were nominated, and thus the number of Asian candidates remained below the required number. The following persons were nominated:[6]
Minimum voting requirements governed part of the election. This was to ensure that articles 36(5) and 36(8)(a) cited above were fulfilled. For this election, the following minimum voting requirements applied initially:[7]
Criterion
Number of judges required
Number of judges remaining in office
Ex ante voting requirement
Number of candidates
Adjusted voting requirement
Adjusted voting requirement equals ex ante?
Lists A or B
List A
9
8
1
10
1
Yes
List B
5
4
1
8
1
Yes
Regional criteria
African
3
3
0
5
0
Yes
Asian
3
2
1
1
0
No
Eastern European
3
2
1
2
1
Yes
Latin American and Caribbean
3
1
2
7
2
Yes
Western European and other
3
4
0
3
0
Yes
Gender criteria
Female
6
5
1
8
1
Yes
Male
6
7
0
10
0
Yes
Regarding the List A or B requirement, one vote had to be cast for a List A candidate and one for a List B candidate.
Regarding the regional criteria, three votes had to be cast for certain regional groups: one for an Eastern European candidate and two for Latin American or Caribbean candidates.
Regarding the gender criteria, one vote had to be cast for a female candidate.
Because only one Asian candidate had been nominated, the regional minimum voting requirement for Asian candidates was adjusted to zero before the election pursuant to paragraph 20 (b) of the resolution that governs the elections.[2][8]
The minimum voting requirements are updated after each ballot to account for the judges already elected. The regional and gender requirements are dropped either if they can no longer be (jointly) fulfilled, or if after four ballots not all seats are filled. The List A or B requirement remains active until a sufficient number of judges has been elected from each list.
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
1
Yes, after 1st ballot
List B
1
Yes, after 2nd ballot
Eastern European
1
Yes, after 2nd ballot
Latin American and Caribbean
2
Yes, after 4th ballot
Female
1
Yes, after 1st ballot
Note that these are the initial minimum voting requirements before the first ballot but after adjustment based on the number of candidates. Without that adjustment, there would have been a minimum voting requirement to cast one vote for an Asian candidate; no Asian candidate was elected.
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