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The Rome Statute of the International Criminal Court - A Commentary edited by Cassese, Antonio; Gaeta, Paola; Jones, John RWD (25th July 2002)

Volume I, s.2 Structure of the ICC, 4 The Court, Ch.4.4 Composition of the Court

John R. W. D. Jones

From: The Rome Statute of the International Criminal Court

Edited By: Professor Antonio Cassese, Professor Paola Gaeta, Mr John R.W.D. Jones

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 20 April 2019

(p. 235) Chapter 4.4  Composition of the Court

(p. 236) I. Overview

Part 4 of the Rome Statute concerns the organization of the International Criminal Court, in other words, its organs (Presidency, Chambers, Office of the Prosecutor, and Registry) and their respective functions. It also details the procedures for nominating and electing the Court’s judges, Prosecutor, and Registrar, and their deputies (and for appointing other staff), for ensuring their independence and impartiality, and for removing them in case of misconduct or inability to exercise their functions. Part 4 is, therefore, a pivotal component of the Rome Statute: it is the Court’s ‘hinges’.1

This part of the Statute clearly shows the ICC’s lineage as the progeny of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. Nevertheless, however striking the family resemblance may be, the midwives at the Rome Conference have also left their mark, endowing the embryonic Court with its own distinctive features. Some of the ICC’s distinguishing marks reflect the fact that it was created by treaty, unlike the ICTY and ICTR which were created by the Security Council acting under Chapter VII of the United Nations Charter as a response to specific situations threatening international peace and security. This explains, for example, why ICC judges are elected by an Assembly of States Parties rather than by the United Nations General Assembly and Security Council.

Yet the ICC’s distinctive mode of establishment2 does not suffice to explain all of its unique organizational and administrarive characteristics. In certain cases, there seems, rather, to have been a deliberate decision to depart from the ICTY/ICTR model. In these cases it is pertinent to examine in what respect(s) this otherwise satisfactory precedent was found wanting, and to ascertain whether the ICC solution was the best response to the perceived flaws.

II. Organs of the Court

A. Introduction

The organs of the ICC are: (a) the Presidency; (b) an Appeals Division, a Trial Division, and a Pre-Trial Division; (c) the Office of the Prosecutor; and (d) the Registry.3

(p. 237) B. History of Provision

Article 34 (‘Organs of the Court’) does not differ substantially from Article 5 of the Draft Statute for an International Criminal Court prepared by the International Law Commission at its forty-sixth session4 (hereinafter ‘the ILC Draft Statute’). Article 5 of the ILC Draft Statute provided for a Presidency, ‘an Appeals Chamber, Trial Chambers and other Chambers’, a Procuracy, and a Registry. Besides the change in name from ‘Procuracy’ to the more prosaic, ‘Office of the Prosecutor’,5 the only difference in substance between the ILC Draft Statute and the Rome Statute is the explicit reference to a Pre-Trial Division in the latter. The notion of a Pre-Trial Division or Chamber was clearly prominent in delegates’ minds from the beginning of the Preparatory Committee’s work6 and thus naturally found its way into the Rome Statute.

C. Comparison with Other International Courts and Tribunals

1. The Nuremberg and Tokyo Tribunals

Under the Charter of the International Military Tribunal, established by the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, signed at London, 8 August 1945 (hereinafter ‘the Nuremberg Charter’), the Tribunal itself simply comprised the four judges (or ‘members’), and their alternates, one of each appointed by each of the Signatories (the United Kingdom, the United States, France, and the USSR).7 A Registry or Secretariat was not mentioned in the Nuremberg Charter, although the Tribunal obviously had the support of auxiliary staff. The prosecuting authority consisted of a body which was, in a sense, independent from the Tribunal, namely the Committee for the Investigation and Prosecution of Major (p. 238) War Criminals,8 comprised of four Chief Prosecutors, again one appointed by each Signatory.

The Tokyo Tribunal, established by the Charter of the International Military Tribunal for the Far East (hereinafter ‘the Tokyo Charter’), by command of General MacArthur, the Supreme Commander for the Allied Powers, differed somewhat from the Nuremberg Tribunal in its composition. It consisted of its Members (to number between six and eleven),9 a President, and a Secretariat headed by a General Secretary to ‘organise and direct the work of the Secretariat’.10

The essential difference between the Nuremberg and Tokyo Tribunals and the ICC is that the former were not standing courts. They were ad hoc tribunals convened by the Allies to deal with a single trial on indictment. Thus, the judges of the Nuremberg and Tokyo Tribunals served full-time on the single trial of the ‘major war criminals’ which they were constituted to try. Upon completion of the trial, the Tribunals were dissolved. The remaining Axis criminals were tried by other national and international courts, tribunals, and courts-martial. The Nuremberg and Tokyo Tribunals also differ from the ICC in that they were essentially extensions of the State apparatus of each of the Allied Powers, rather than independent, international organizations.

2. The ICJ and the Law of the Sea Tribunal

The International Court of Justice, the principle judicial organ of the United Nations,11 consists of fifteen independent judges.12 Since it is a forum for resolving inter-State disputes, there is no prosecution or other authority to bring cases before the Court. States—and only States—may bring cases before the Court, and only against other States.13

The appointment of a Registrar and ‘such other officers as may be necessary’ is provided for in Article 21(2) of the ICJ Statute. From this it would seem that a relatively minor role was envisaged for the Registry.14 In fact, in 1996, Registry staff comprised more than sixty officers.15

(p. 239) The International Tribunal for the Law of the Sea, established by the United Nations Convention on the Law of the Sea (Annex VI) of 10 December 1982, with its seat in Hamburg (hereinafter ‘the Law of the Sea Tribunal’) has a similar structure to the ICJ. It is composed of twenty-one independent members.16 The provision in its Statute concerning the Registrar and his staff is identical to the corresponding provision in the ICJ Statute.17

3. The ICTY and ICTR

The ICTY and the ICTR both comprise three organs, as opposed to the ICC’s four organs. The difference is that the ICTY and ICTR do not, as the ICC does, privilege the Presidency as an official organ. The three organs of the ICTY and ICTR are the Chambers (comprising three Trial Chambers18 and a common Appeals Chamber), the Prosecutor, and the Registry.19 The ICTY/ICTR Bureaux20 perform similar functions to those envisaged for the ICC Presidency.21

Although the ICTY and ICTR Statutes do not make reference to a Pre-Trial Division, the ICTY instituted a Pre-Trial Judge by amendment to its Rules of Procedure and Evidence (hereinafter ‘RPE’), providing a precedent for the ICC Pre-Trial Division.22 In the PrepCom discussions, civil-law countries were in favour of a Pre-Trial Judge who would perform some of the functions as are carried out, for example, by a juge d’instruction, namely providing judicial control and review over the early stages of an investigation.23

(p. 240) D. Comments and Suggestions

Clearly, any international criminal court must have a judicial organ, a prosecutorial organ, and a secretariat or registry.24 This in itself would dictate a court comprised of only three organs. The Presidency would not, then, appear essential, although, as noted above, the ICTY and ICTR did both institute a similar organ, the Bureau, as well as a de facto Presidential office.25 Substance is more important than form, however, and the real question to pose is whether each organ has been allocated its proper functions. Criticisms may be made of the Statute on this score, in particular with regard to the overly powerful Presidency.

A further issue is whether defence counsel should have been included as an organ of the Court. This was considered at Rome but rejected,26 in the view of this author, rightly. While the defence bar was almost certainly neglected, as a whole, at Rome (possibly as a result of lack of representation at the Conference), to create a defence organ would not necessarily have improved matters for the accused or for counsel. Defence counsel residing permanently at the Court, in a sort of public defenders office, would easily fall prey to the charge of being Court lackeys, too closely identified with the Court, as well as, possibly, lacking the calibre of defence lawyers busy in practice in their own jurisdictions. Moreover, if an indigent accused were only permitted to choose representation from among these lawyers, this would represent a considerably restricted choice for him, as opposed to the ICTY/ICTR system where he may choose from a list of available defence lawyers.27 A better solution would be for the ICC Statute to refer to some sort of international criminal defence bar or association, conferring on it a representative role vis-à-vis defence lawyers appearing before the Court (such as promulgating a code of conduct, disciplining its members for breach of the code, speaking for the defence bar as a whole when amendments to the rules of procedure and evidence are proposed, etc.). Such a bar is, indeed, in its infancy.28 The finalized draft text of the Rules of Procedure and Evidence, dated 12 July 2000 (hereinafter ‘ICC RPE’) envisages such a possibility. Rule 20(3) provides:

For purposes such as the management of legal assistance in accordance with rule 21 and the development of a Code of Professional Conduct in accordance with rule 8, the Registrar shall consult, as appropriate, with any independent representative body (p. 241) of counsel of legal associations, including any such body the establishment of which may be facilitated by the Assembly of States Patties.

III. Judges

A. Introduction

The judges are the centrepiece of any court of law, the pre-eminent instruments of justice. Their role is, moreover, doubly important—and difficult—where they are ‘both judge and jury’, that is to say both triers of law (judges) and triers of fact (jurors), as they are at the ICC and indeed at all international courts and tribunals. The fact that a fused trier of fact and trier of law has become the model for the administration of international criminal justice (following Nuremberg, Tokyo, the ICTY, and the ICTR)29 does not diminish the need to distinguish between these two hats worn by international judges. It also makes it doubly important to ensure that ICC judges possess the necessary impartiality, independence, discretion, and good judgement to safeguard the Court’s reputation. That is the purpose of the procedures for nominating and electing judges, dealt with in Articles 35 to 37 of the Statute, and the provisions on judicial independence and impartiality, dealt with in Articles 40 and 41.

Eighteen judges will serve on the Court.30 They must be ‘of high moral character, impartiality and integrity’.31 Only the judges who comprise the Presidency—i.e. the President and Vice-Presidents of the Court, elected by the judges—will serve fulltime from the moment the Court is established, while the other judges will be available to serve on a full-time basis from the commencement of their terms of office.32 This arrangement was made because it was feared, no doubt rightly, that the ICC might not be sufficiently busy at the outset of its establishment to justify a standing judiciary of eighteen full-time members.

The decision as to whether and to what extent the other members of the Court should serve full-time is taken by the Presidency on the basis of the workload of (p. 242) the Court and in consultation with its members.33 Before serving full-time, it is contemplated that the judges will receive a salary or allowance as decided upon by the Assembly of States Parties.34

B. History of Provisions

1. Qualifications of Judges

The broad contours of Article 6 of the ILC Draft Statute (‘Qualifications and election of judges’) remain the same in Article 36 of the Rome Statute. Article 6 required judges to ‘be persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to the highest judicial offices, and have, in addition: (a) criminal trial experience;[or] (b) recognised competence in international law.’ These requirements have been elaborated in the Rome Statute, but the basic elements remain unchanged.

2. Nominations

Article 6(2) of the ILC Draft Statute dealt with the nomination of judges and proposed a straightforward nomination by States of at most two persons, of different nationality from each other, at each election. The indirect nomination system of the ICJ which found its way into Article 36(4)(a)(ii) was suggested during the PrepCom discussions.35

3. Elections

The election procedure outlined in ILC Draft Article 6(3)36 has been made less rigid in Article 36(5) of the Rome Statute, which provides only that ‘at least nine judges shall be elected from list A [criminal lawyers] and at least five judges from list B [international lawyers]’ (emphasis added), with ‘[s]ubsequent elections [being] so organized as to maintain the equivalent proportion on the Court of judges qualified on the two lists’. In other words, in subsequent elections, the (p. 243) Assembly of States Parties will have to decide how many judges are to be elected from each list in order to maintain this approximate 9:5 ratio.

4. Vacancies

Article 7 of the ILC Draft Statute dealt with judicial vacancies. It is in all significant respects identical to Article 37 of the Rome Statute, save that the maximum term that a replacement judge may have served and still seek re-election is five years in the former and three years in the latter.

5. Independence and Impartiality

Article 40 (‘Independence of the judges’) is based on Article 10 of the ILC Draft Statute, although the latter’s provision that ‘[the Judges] shall not while holding the office of judge be a member of the legislative or executive branches of the Government of a State, or of a body responsible for the investigation or prosecution of crimes’, has been replaced by the more substantive test in Article 40, which focuses enquiry on whether full-time judges are actually engaging in another ‘occupation of a professional nature’ rather than on whether they are formally holding office. In the PrepCom discussions, the view was expressed that fulltime judges should not engage in any activities that would prejudice their judicial functions. Part-time teaching and writing were considered acceptable activities for that purpose. Part-time judges, on the other hand, are granted wider latitude, being prohibited only from ‘engag[ing] in any activity which is likely to interfere with their judicial functions or to affect confidence in their independence’.37

Another shift away from the ILC Draft Statute concerns the Draft’s proposal that the Presidency would decide issues relating to judicial independence.38 Under the Rome Statute, these issues are to be decided by ‘an absolute majority of the judges’.39 The PrepCom considered that this was more in line with the ICJ Statute.40 The situation is not analogous, however, since an ICJ ‘Presidency’ does not exist; there is only one President, and it would clearly be autocratic to grant him the sole power to decide issues of judicial independence. The ICC Presidency, on the other hand, comprises three individuals whose mandate is to oversee ‘the proper administration of the Court’, and it might, therefore, have been appropriate for the Presidency to have been left to decide such issues.

(p. 244) 6. Excusing and Disqualifying Judges

Article 41 of the Rome Statute is largely identical to Article 11 of the ILC Draft Statute. The disqualification test is basically similar, save that the ILC Draft article included a reference to disqualification for ‘an actual, apparent or potential conflict of interest’,41 which is absent from the Rome Statute. The Rome Statute article is nonetheless open-ended, allowing other grounds of disqualification as ‘provided for in the Rules of Procedure and Evidence’.42 Article 11(4) of the ILC Draft Statute also differed in providing that decisions on disqualification were to be taken by ‘an absolute majority of the members of the Chamber concerned’ (emphasis added), minus the judge concerned. This does not make much sense, since, in a three-judge chamber, only two judges would be left to decide the issue. They would, therefore, have to be unanimous or they would be unable to reach a decision: the notion of a ‘majority’ in this context makes no sense. The Rome Statute more sensibly provides that such a decision should be taken by an absolute majority of all the judges.43

In the PrepCom discussions, it was suggested that ‘States parties should be able to raise questions concerning the disqualification of a judge’.44 Fortunately, this suggestion was not adopted. If neither of the parties wishes to request the disqualification of a judge pursuant to Article 4l(2)(b), then there seems to be no good reason why a State Party should have standing to do so. Note, however, that Rule 35 of the ICC RPE has affirmed a duty on the part of a judge (as well as the Prosecutor or a Deputy Prosecutor) to request to be excused, without waiting for a request for disqualification, where he or she ‘has reason to believe that a ground for disqualification exists in relation to him or her’.

C. The Rome Statute

1. Qualifications of Judges

The calibre of the judges is clearly vital to the Court. To be eligible, the judges must have the qualifications required in their respective States for appointment to the highest judicial offices.45

(p. 245) Every candidate for election to the Court must ‘have an excellent knowledge of and be fluent in at least one of the working languages of the Court’,46 the working languages being French and English.47 Ideally, candidates should also have an excellent command of the other working language, otherwise problems are bound to arise, especially if the judge serves on the same Chamber as a judge who is only able to work in the other language.

2. Nominations

Elections to the Court are carried out on the basis of nominations by State Parties to the Statute.48 Non-State Parties, IGOs, and NGOs may not nominate judges. There are two systems of nomination by States Parties. A State may either nominate a candidate ‘[b]y the procedure for the nomination of candidates for appointment to the highest judicial offices in the State in question’49 or ‘[b]y the procedure provided for the nomination of candidates for the International Court of Justice in the Statute of that Court’.50 Nominations must be accompanied by a statement in the necessary detail specifying how the candidate meets the requirements for judicial office provided for in Article 36(3), that is, that they have the required competence, satisfy the language requirement, and that they are of high moral character, impartiality, and integrity, and eligible for appointment to the highest judicial offices in the State in question.

A State Party may nominate one candidate for each election. The candidate need not be that State’s national, but he or she must be a national of a State Party.51

The Assembly of States Parties may establish an Advisory Committee on nominations, with the composition and mandate that the Assembly chooses.52

(p. 246) 3. Elections

Judges are elected from two lists of candidates.53 One list (List A) comprises the criminal law practitioners contemplated in Article 36(3)(b)(i). The other list (List B) comprises the international humanitarian and human rights lawyers contemplated in Article 36(3)(b)(ii).54 At least nine judges are to be elected from List A and at least five judges from List B, with subsequent elections being managed so as ‘to maintain the equivalent proportion on the Court of judges qualified on the two lists’. Thus, ‘criminal law judges’ will preponderate on the Court. A candidate with sufficient qualifications to appear on both lists is allowed to choose on which list he appears, or, it seems, he may ‘hedge his bets’ and appear on both lists (since, under Article 36(5) he ‘may’, but is not obliged to, ‘choose on which list to appear’).

The judges are elected by the Assembly of States Parties using a secret ballot, those elected being ‘the 18 candidates who obtain the highest number of votes and a two-thirds majority of the States Parties present and voting’.55 It is not altogether clear whether each State Party will vote ‘yea’ or ‘nay’ for each candidate, or whether each State Party will present a list of the eighteen candidates for which it is voting. Whatever the system, those with the most votes are elected, provided that each candidate obtains at least a two-thirds majority of the States Parties present and voting. If an insufficient number of judges is elected on the first ballot, then successive ballots are held to fill the remaining places.56

No two judges may be nationals of the same State.57 Where a candidate may be considered to possess more than one nationality, he is deemed to be a national of the State in which he ordinarily exercises civil and political rights.

States must take into account a number of factors when they nominate and elect judges, namely:

(i)  representation of the principal legal systems of the world;

(ii)  equitable geographical representation; and

(iii)  a fair representation of female and male judges.58

(p. 247) States must also ‘take into account the need to include judges with legal expertise on specific issues, including, but not limited to, violence against women or children’.59

Judges are elected for nine-year terms, without the possibility of re-election (subject to some limited exceptions).60 Notwithstanding the end of a judge’s term of office, however, he continues to hear any cases which he has started.61

4. Vacancies

In the event of a vacancy in the Chambers, an election is held in accordance with Article 36 to fill it.62 The judge elected to fill the vacancy will serve for the remainder of his predecessor’s term. If this period is less than three years, then the replacement judge may seek re-election. The question of what the Chambers will do while waiting for a new judge to be assigned is not dealt with in Article 37. It may have been presumed that the new judge would be assigned immediately and would take over all of his predecessor’s cases; in which case it would not be necessary to assign a replacement judge in the meantime. In that case, Article 37 should perhaps have provided that a new judge shall be elected ‘immediately’ or ‘as soon as possible’.

Article 37(2)63 is self-explanatory and fits in with the philosophy of Article 36(9)(c), allowing a judge who is elected at the first election for a period of only three years to seek re-election.

5. Independence and Impartiality

The Rome Statute treats independence and impartiality separately. Article 36(3)(a) states that judges must be ‘of high moral character, impartiality and integrity’ (emphasis added), while Article 41(2) requires the disqualification of a judge where his impartiality might be questioned on any ground. The judges’ independence, on the other hand, is dealt with in Article 40 (see next section).

6. Excusing and Disqualifying Judges

Broadly speaking, Article 40 deals with judicial independence while Article 41(2) deals with judicial impartiality. Under Article 40, the judges must be independent in the performance of their functions and must ‘not engage in any activity which (p. 248) is likely to interfere with their judicial functions or to affect confidence in their independence’. Disputes about the independence of judges are to be decided by an absolute majority of the judges, without the participation of the judge in question.64

Under Article 41(1), a judge may, at his own request, be ‘excused’ by the Presidency from the exercise of a function under the Statute. The grounds for excusing a judge under this provision are not mentioned: that has been left to the Rules of Procedure and Evidence to elaborate. However the grounds would almost certainly include those set out in Article 41(2); in other words, a judge anticipating a request for his disqualification under Article 4l(2)(b) might seek to be ‘excused’ before such a request is made.

Three grounds are given in Article 41 for the disqualification of a judge for lack of impartiality or for the appearance of partiality:

(1)  his or her impartiality might be doubted on any ground in that case;

(2)  the judge has previously been involved in some capacity in the case before the Court or in a related criminal case at the national level involving the person being investigated or prosecuted; or

(3)  other grounds as provided for in the Rules of Procedure and Evidence.65

Disqualification may be requested by the Prosecutor or the suspect/accused.66 The question of disqualification is decided by an absolute majority of the judges.67 The challenged judge may present his or her observations, but must refrain from voting.68

D. Comparison with Other International Courts and Tribunals

1. The Nuremberg and Tokyo Tribunals

Independence. The Nuremberg and Tokyo Tribunals had no equivalent provision on the independence of judges. On the contrary, Article 3 of the Nuremberg Charter provided that ‘[n]either the Tribunal, its members nor their alternates can be challenged by the prosecution, or by their Defendants or their Counsel’.69 That is not to say that judicial independence was compromised at Nuremberg: simply that challenges as to independence would have gone to the heart of the political nature of the trials and, therefore, could not be entertained. For example, the (p. 249) English judge at Nuremberg could not be said to be independent of the United Kingdom which had appointed him, which in turn, as an Allied Power which had been fighting Nazi Germany, could not be said to be impartial as to the trial of alleged Nazi war criminals. Those were the parameters of the trials and could not, therefore, be allowed to be challenged. What was important, rather, was to ensure procedural fairness and due process in the trial of each accused, which, it is generally accepted, was achieved at Nuremberg.

The Tokyo Tribunal had no corresponding provision on judicial independence.

2. The ICJ and the Law of the Sea Tribunal

Qualifications of judges. The requirement in the Rome Statute70 that the judges have the qualifications required in their respective States for appointment to the highest judicial offices is closely modelled on the equivalent provision in the ICJ Statute.71 Article 2 of the ICJ Statute provides that candidates for the ICJ judiciary must ‘possess the qualifications required in their respective countries for appointment to the highest judicial offices, or [be] jurisconsults of recognised competence in international law’. Professor Brownlie states that this ‘takes in professors, professional lawyers, and civil service appointees’, observing that ‘in practice many Judges of the Court have been former advisers to national Foreign Ministries’.72

The reference to ‘jurisconsults of recognised competence in international law’ does not, however, appear in Article 36 of the Rome Statute; on the contrary, it is clear from the ICC’s preparatory works that the drafters of the Statute wished ICC judges lacking expertise in criminal law and procedure at least to have ‘extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court’, a criterion which would usually exclude academics and civil service appointees, at least to the extent that they lacked such experience.73

Nominations. The nomination system in the ICC is also partly modelled on the ICJ. Eyffinger explains the procedure for nominating ICJ judges thus:

The crucial feature of this procedure is the idea of indirect nomination, that is to say not by Governments directly but through so-called National Groups. The idea was well-suited to the PCA [Permanent Court of Arbitration], as this is not a standing (p. 250) court properly speaking, but in fact consists of a Secretariat in The Hague which administers a list of aspirant arbitrators, from which list contending parties are free to compose a panel. The list itself is drawn up by the Parties adhering to the 1899 (and subsequently the 1907) Conventions. Each party is entitled to nominate four members of its National Group in the PCA.

The idea conceived by the 1920 Committee of Jurists that drafted the Statute of the PCIJ [the Permanent Court of International Justice—the precursor of the ICJ] was that each National Group would nominate no more than four candidates for the PCIJ, only two of whom could be its nationals, after consultation with representatives of the national supreme courts, law schools and learned academies. During the full 20 years of the PCIJ the system functioned adequately and despite some opposition it was maintained in the 1946 Statute.74

Eyffinger points out that it is anomalous, however, to transplant an idea developed for one Court, the PCA, to another institution, the PCIJ/ICJ, which operates on altogether different principles. Since, to date, 81 nations adhere to the Hague Conventions and the PCA, whereas 186 nations are parties to the Statute of the Court,75 the other hundred or more nations must ‘artificially’ constitute National Groups for the sole purpose of nominating ICJ judges.76

It seems little justified that this anomalous procedure has again been transplanted, this time to the ICC. Moreover, it is paradoxical that, under the Rome Statute, States may nominate a candidate using this procedure when it is a procedure intended to promote the judges’ independence by avoiding direct nomination by States.77

Elections. Unlike ICJ judges, who serve for nine-year terms and may be re-elected without limit,78 ICC judges may not be re-elected. This is an undoubted improvement (see ‘Comments and Suggestions’, below).

Vacancies. Corresponding provisions are Article 14 of the ICJ Statute and Article 6 of the Statute of the Law of the Sea Tribunal.

Independence. Under Article 2 of the ICJ Statute, ‘The Court shall be composed of a body of independent judges …’. In terms of content, however, Article 40 of (p. 251) the Rome Statute is more far-reaching than the corresponding provision in the ICJ Statute, which merely provides that ‘[n]o member of the Court may exercise any political or administrative function, or engage in any other occupation of a professional nature’.79 Given that ICJ judges are often former government legal advisers, it would be difficult to insist on full independence.

Impartiality. Article 17(2) and (3) of the ICJ Statute provides a precedent for Article 41(2) of the ICC Statute, although the ICJ provision is much less restrictive, focusing not on the question of partiality or the appearance thereof but on the concrete question of whether the judge in fact previously took part in the case ‘as agent, counsel, or advocate for one of the parties, or as a member of a national or international court, or of a commission of enquiry, or in any other capacity’,80 such question to be settled by the Court. Clearly a judge must be disqualified in such a case. But the ICJ Statute makes no provision for disqualification where the judge is not, or does not appear to be, impartial.

3. The ICTY and ICTR

Elections. ICTY judges are elected for four-year terms, with the terms and conditions of service being the same as for ICJ judges. They are eligible for re-election.81 Notwithstanding the end of a judge’s term of office, he continues to hear any cases which he has started.82

The reference in the ICTY Statute to the ICJ judges’ terms and conditions is not, however, very helpful for determining whether ICTY judges serve full-time or not, since the ICJ Statute is silent on the subject. The ICTR Statute suffers from like obscurity as it provides that the ICTR judges’ terms and conditions of service are those of ICTY judges.83

In practice, during the start-up period of each Tribunal, ICTY and ICTR judges were paid on an ad hoc basis.84 Once indictments were issued and accused persons (p. 252) arrested, the judges were placed on regular salaries. While not staff members of the United Nations, ICTY/ICTR judges have the same status as United Nations Under-Secretaries-General.

Disqualifying judges. A comparable provision to Article 41(1) of the Rome Statute is Rule 15(A) of the ICTY’s RPE, which, while apparently designed to allow withdrawal on the grounds of impugned impartiality, has been applied to simply allow a judge to withdraw from a case ‘without cause’, i.e. without any suggestion of personal interest or bias.85 It seems right that this should be allowed, provided that excessive withdrawals do not paralyse the Court’s work; a matter which can presumably be controlled in the ICC by the Presidency in exercising its discretion as to whether or not to grant a judge’s request to be excused.

Vacancies. Judicial vacancies are dealt with in Article 13(3) of the ICTY Statute and Article 12(4) of the ICTR Statute. A judicial vacancy may be brought about by resignation, for health or personal reasons, or death.86 The pertinent rule, ICTY Rule 15, has been amended several times to deal with the situation posed by a vacancy. Sub-rule (E) provides that ‘in case of illness or an unfilled vacancy or in any other exceptional circumstances’, the President may authorize a Trial Chamber to sit in the absence of one or more of its members where ‘routine matters’ are concerned. A definition of ‘routine matters’ is not provided, but an example given in Rule 15(E)—an initial appearance under Rule 62—is not very apt as this is the hearing at which the accused enters a plea (possibly a guilty one) and in which the Chamber has to satisfy itself that the accused is adequately represented by counsel. A better example is ‘the delivery of decisions’, since that consists simply in reading aloud what must anyway be rendered in writing under Article 23 of the ICTY Statute and Rule 98ter(C) of the ICTY RPE.

ICTY Rule 15(E) allows the President to assign a replacement judge to a partheard case, although if the presentation of evidence has commenced, under Rule 85, then this can only be done with the accused’s consent.

Independence and impartiality. The Statutes of the ICTY and ICTR provide that ‘the Judges shall be persons of high moral character, impartiality and integrity’.87 This concerns the necessary qualifications of judges, however, and not the requirement that they be independent and impartial in the performance of their functions. On this subject, the ICTY and ICTR Statutes are silent. ICTY and ICTR Rule 15(A) fills this lacuna by providing that ‘[a] Judge may not sit on a trial or appeal (p. 253) in any case in which he has a personal interest or concerning which the Judge has or has had any association which might affect his or her impartiality’. When a party raises such an objection against a judge, the matter is determined, if necessary (i.e. if the judge in question does not voluntarily withdraw) by the Bureau. As noted above, such a matter will be decided at the ICC not by the Presidency, which is the functional equivalent of the Bureau, but by a majority of the judges. In itself, this is not objectionable—indeed it is more democratic than the Presidency deciding the issue—but it is to be hoped that the decision will not be taken by secret ballot but openly, as a secret ballot would dilute the responsibility of the decision-makers, in which case it would seem better for the Presidency to decide the issue.

While the ICTY and ICTR Statutes also make no provision for disqualification for the appearance of partiality, the matter is addressed by Rule 15, on which a number of decisions have been rendered.88

E. Comments and Suggestions

Qualifications. It is one thing for high standards of independence, impartiality, and competence to be set for judges and another to ensure that all the candidates meet these standards. It is, therefore, a step in the right direction that, under Article 36(4)(a), ‘nominations shall be accompanied by a statement in the necessary detail specifying how the candidate fulfils the requirements’. However it might have been better if candidates had to pass a rigorous examination to ensure that they possessed all the necessary qualifications.89 The Advisory Committee on nominations, if established under Article 36(4)(c), could remedy any shortcomings in the nomination process.90

(p. 254) Nominations. It would be desirable for national judiciaries to play an active role in the nomination of candidates. This is currently only partially provided for through the incorporation of the ICJ-type nomination system, according to which, ‘Before making … nominations, each national group is recommended to consult its highest court of justice, its legal faculties and schools of law, and its national sections of international academies devoted to the study of law.’91

Elections. That ICC judges may not be re-elected is a welcome departure from the ICJ, ICTY, and ICTR, as a means of ensuring judicial independence, since it frees judges from any temptation to curry favour during their terms in the hopes of re-election. The same consideration applies to the Prosecutor and his deputies.92 One exception to the non-re-election rule at the ICC is that a judge who is elected for three years, at the Court’s start-up phase, may be re-elected once, so the maximum possible term is twelve years. This is a reasonable exception, as few judges would be willing to accept a mere three-year appointment.

The need, emphasized in Article 36(8)(a)(i), for a panel of judges which is representative of the world’s main systems of law is clear. A similar provision appears in the statutes of most international courts.93 This would presumably also have an impact on the sources of law and the general principles of law applied by the ICC. In other words, one would expect ICC judges, in interpreting the Statute and in applying international law, to take inspiration from the principal legal systems of the world.94 The ICTY and ICTR have by and large acknowledged that they should be inspired by the main world legal systems, although in practice they have understandably, tended to emphasize the common-law and civil-law traditions with which they are familiar,95 to the exclusion of other world legal systems such as Sharia, Hindu law, or African customary law. The ICC, when it starts hearing (p. 255) cases and generating jurisprudence, might try to reverse this trend by also taking into account these other world legal systems.

The criterion of ‘equitable geographical distribution’ which appears in Article 36(8)(a)(ii) is, on the other hand, something of a United Nations shibboleth. It is of questionable utility given that the judges must already be representative of the world’s principal legal systems, pursuant to Article 36(8)(a)(i), and that States can, and will, as a political matter, elect judges so as to ensure that the Court has the geographical complexion they wish. Not surprisingly, a similar provision does not exist in the ICJ Statute.

The reference to ‘a fair representation of female and male judges’ in Article 36(8)(a)(iii) also seems to be a gesture in the direction of political correctness. Assuming that women and men each comprise approximately half of the world population, the only fair representation would be for half the judges to be men and half to be women, or thereabouts. If that is what was intended, then the Statute should simply have provided that, as near as possible, half of the judges shall be women.96 The provision could also be interpreted, however, to mean that the composition of the Court should reflect the gender composition of the legal profession worldwide, which is still largely dominated by men. It is submitted that the former interpretation is to be preferred and that States should try to elect male and female judges in a 50/50 proportion.

Independence and impartiality. Judicial independence may be ensured through: (1) the election procedure; (2) length of terms; (3) security of tenure; and (4) appropriate remuneration. For the most part, the Rome Statute, on each of these points, secures the desired objective. The Statute scores less highly, however, on the subject of impartiality. Impartiality is a distinct concept from independence. Indeed, although it may sound bizarre, an impartial judge is preferable to an independent judge, because the former is, by definition, able to decide the case fairly, whatever his links, whereas an independent judge may be autonomous but his judgement may be clouded by personal prejudices or biases which undermine his ability to decide the case equitably.

That a judge must be impartial in the performance of his judicial functions is never explicitly stated in the Rome Statute, and, in the light of the foregoing, it is submitted that it should be. In particular, as a trier of law, the judge must be entirely impartial as between the Prosecutor and the Defence. As a trier of fact, he must have no predisposition to believe the Prosecutor’s allegations rather than those of the accused. This may seem obvious, since it follows from the presumption of (p. 256) innocence. In practice, however, it is worth insisting upon. A defence advocate appearing before one of the international tribunals has been heard to complain that, de facto, ‘every accused who walks in the door of the Tribunal is presumed guilty’. This may appear to be hyperbole; however to reply to this complaint that the accused is, in law, presumed innocent may be to state more than that the prosecution bears the burden of proof.97 Certainly, the prosecution must prove the accused’s guilt; the accused does not have to prove his innocence. But it is a fact that many lay triers of fact believe that the accused would not be in the dock unless he had done something: ‘there is no smoke without fire’. Professional triers of fact, in this case ICC judges, must not make the same mistake. In short, they must be impartial as between prosecution and defence. Equally they must be impartial as between different nationalities, religions, ethnic groups, etc. Consequently, the backgrounds of those nominated for election as judges should be carefully scrutinized to ensure that the candidate is not tainted by any habitual intolerance or prejudice.

Judges must also refrain from ‘any activity which is likely to interfere with their judicial functions or to affect confidence in their independence’.98 In the context of what has been said in the previous paragraph, it is submitted that the words ‘or impartiality’ should be read into the end of this phrase. The phrase which refers to any activity which is likely ‘to affect confidence in [the judges’] independence’ is carefully worded. It is not necessary that a judge’s independence be actually compromised; it is sufficient if confidence in the judge’s independence is compromised. This accords with the adage that it is not enough for justice to be done, but it must also be seen to be done.99 It is nor enough, in other words, that the judge is in fact independent, the judge must also be seen to be independent.

A difficult issue, which is likely to come before the ICC as it has the ICTY,100 arises when a defendant requests a judge’s disqualification because of his or her prior links with a human rights or humanitarian law association. An accused might well argue that any such link casts doubt on the judge’s impartiality. A similar issue arose, famously, in Pinochet (No. 2),101 in which a House of Lords Judgment was, (p. 257) possibly for the first time in the history of the House of Lords, set aside on the grounds that one of the judges taking part in the Judgment, Lord Hoffmann, could not be seen to be impartial as he had a connection with the non-governmental organization, Amnesty International, which had intervened in the proceedings.

It is to be expected that at least some ICC judges will be nominated precisely because of their reputations for defending human rights and/or the rights of victims to redress. Many judges will no doubt be motivated by a conviction that the victims of large-scale atrocities should see justice done. In this they may not differ greatly from many judges in national jurisdictions, or indeed from ordinary people. The problem, at least from a common-law perspective, is that the judges are in this case not only triers of law but also triers of fact, i.e. jurors. Jurors, however, usually come from all walks of life and do not necessarily have any particular passion for law enforcement. Indeed they may have an instinctive mistrust of the police and/or pity for the man or woman in the dock who has ended up on the wrong side of the law. The panel of jurors is a mixed bag of people with no particular axe to grind. The danger in international tribunals, where the judges are also the jurors, is that, by virtue of the career path which has led them to the ICC, the judges may tend to be ‘prosecution-minded’, i.e. they may tend to believe prosecution witnesses and to disbelieve the accused and defence witnesses, with the result that they are more likely to convict an accused than to acquit him. They may also seek to display their human rights credentials by taking uncompromising moral standards. Of course this is by no means a general rule. Judges have served at the ICTY and ICTR who have practised as defence counsel and who, therefore, understand the defence perspective. Nevertheless an accused who finds himself before a Chamber in which one or several members have, prior to joining the ICC, been associated with organizations or causes whose very aim is to prosecute violations of international law, may feel that the panel is not truly impartial. He may, therefore, move to have those judges disqualified. It will be interesting to see how the ICC decides such motions. Rule 34(1)(d) of the ICC RPE has already begun to tackle this issue, providing for disqualification for the ‘expression of opinions … that, objectively, could adversely affect the required impartiality of the person concerned’.

IV. Presidency

A. Introduction

The Presidency appears as an organ of an international court for the first time in the Statute of the ICC. As stated, its institution was presaged by the ICTY and ICTR bureaux. The Presidency will apparently take on a number of the ‘judicial’ (p. 258) functions entrusted at the ICTY and ICTR to the bureau and to the Registry. It will function as the Court’s judicial-administrative body.

While there is no doubt that these functions need to be performed, it may legitimately be questioned whether the Presidency should perform all of them, rather than, for example, the Registry, and whether it should perform them to the extent that it does under the Rome Statute.

B. History of Provision

Article 38 (‘The Presidency’) was based on Article 8 of the ILC Draft Statute. There are three main differences to note. First, the ICC Statute provides that the members of the Presidency are once eligible for re-election.102 This was not in the ILC Draft Statute, either because the ILC drafters were opposed to re-election of the Presidency or because they did not think of it. Secondly, no alternates to the Vice-Presidents are provided for in the ICC Statute, whereas Article 8(2) of the ILC Draft Statute did so provide. The ILC provision was probably considered redundant, since with a President, first Vice-President, and second VicePresident, it is certain that at least one of them will always be available to act. Thirdly, in the ILC Draft Statute, the Presidency would have been responsible for ‘the due administration of the Court’,103 including, presumably, the Office of the Prosecutor. In the Rome Statute, however, it is explicitly stated that the Presidency’s responsibility is for ‘[t]he proper administration of the Court, with the exception of the Office of the Prosecutor’.104 Thus the Rome Statute makes it clear that the OTP is completely separate, administratively, from the Presidency (and from the Registry).

C. The Rome Statute

The ICC Presidency comprises the President and First and Second Vice-Presidents (thus three of the judges).105 The Presidency is responsible for ‘[t]he proper administration of the Court, with the exception of the Office of the Prosecutor’,106 as well as entrusted with the ‘other functions conferred upon it in accordance with this Statute’.107 These ‘other functions’ include deciding when judges shall discharge their duties on a full-time basis, proposing increases and reductions in the number of judges, and excusing a judge from a function.108

(p. 259) The members of the Presidency serve on a full-time basis as soon as they are elected.109 This notion of a ‘standing court’ comprising a few members, with the full Court to be activated when needed, was added to the ILC Draft Statute by the Preparatory Committee.110

Article 38 clearly establishes that the Presidency has no responsibility for the administration of the Office of the Prosecutor: they are separate organs. As to the division of labour between the Presidency and the Registry, that remains more of an open question. Article 43 provides that the Registry shall be responsible for the non-judicial aspects of the administration.

D. Comparison with Other International Courts and Tribunals

1. The Nuremberg and Tokyo Tribunals

While both the Nuremberg and Tokyo Tribunals had Chairmen presiding over the proceedings, there was no organ similar to the ICC Presidency.

2. The ICJ and the Law of the Sea Tribunal

Under Article 21(1) of the ICJ Statute, ‘the Court shall elect its President and Vice-President for three years; they may be re-elected.’ The President decides issues such as disqualification.111 The situation at the Law of the Sea Tribunal is largely similar.112

3. The ICTY and ICTR

Although no organ known as ‘the Presidency’ exists at either the ICTY and ICTR, both tribunals have a President,113 a Vice-President,114 and a Presiding Judge of (p. 260) each Trial Chamber,115 who together form ‘the Bureau’.116 The ICTY Bureau thus comprises five members (President, Vice-President, and three Presiding Judges), while the ICTR Bureau comprises three members (President, Vice-President, and the most senior Presiding Trial Judge). This institution of the Bureau, though not mentioned in the ICTY and ICTR Statutes, was introduced in their respective Rules of Procedure and Evidence.

The Bureau is consulted by the President on ‘all major questions relating to the functioning of the Tribunal’.117 A practice has been established that when ruling on these questions, the Bureau will sometimes render a decision in much the same form as a decision of a Chamber.118 Its jurisdiction is, however, fundamentally different from that of a Chamber: the Bureau is competent only on questions relating to the Tribunal’s functioning which are within the President’s sphere of responsibilities, while the Chamber is competent on all matters concerning the investigation and prosecution of serious violations of international humanitarian law.119

Another useful point of comparison with the ICTY experience concerns relations with the Prosecutor. While Article 38 of the Rome Statute provides that the Presidency is responsible for the proper administration of the Court, with the exception of the OTP, the Presidency will nonetheless have to ‘coordinate with and seek the concurrence of the Prosecutor on all matters of mutual concern’.120

(p. 261) However, virtually any matter affecting the Court may be deemed by the Prosecutor to be a matter ‘of mutual concern’, so the ICC Presidency may find itself obliged to act hand-in-glove with the Prosecutor even though it is not charged with administration of the OTP. This would not be a healthy development: the relations between the Presidency and the OTP should not be cosy and harmonious.121 While it is true that the Prosecutor is an organ of the Court, it is otherwise simply one of two adversarial parties appearing before the judges. It is axiomatic that the Prosecutor and the Defence should be on an equal footing and treated equally by the Presidency and the judges. Since the Presidency is not obliged to consult defence counsel on questions ‘of mutual concern’, it is submitted that it should not have systematically to consult the Prosecutor either.

The ICTY experience has also shown some of the difficulties which may arise between the President and the Prosecutor. As an example, in the Meakić and others and Sikirica and others cases, the Prosecutor applied for a specific judge to be assigned to the case. The President ruled that the application was ‘a misuse of Article 14 of the Statute of the International Tribunal and Rule 62 of the Rules of Procedure and Evidence as neither of these provisions contemplate a role for the Prosecution in the assignment of cases to Trial Chambers and the request affects the rights of all of the aforementioned accused without affording them the opportunity to be heard’.122 The ICC Prosecutor, acting in excess of zeal, might also thus encroach upon the Presidency’s prerogatives, especially since Article 38(4) positively invites such encroachment.

At the ICTY, other disputes have arisen between the Prosecutor, on the one hand, and the Registry and President, on the other hand, concerning the running of the Detention Unit,123 the hiring of personnel, the reporting of non-cooperation of States, and other matters where the interests of the organs did not, in particular instances, coincide. Of course, the fact that differences occur is not a reason for avoiding consultation. Nevertheless, it is submitted that the Rome Statute goes too far in requiring the Presidency to consult the Prosecutor whenever the latter claims a mutual interest.

(p. 262) E. Comments and Suggestions

According to Article 37, the Registry is in charge of the non-judicial aspects of the Court’s functioning. One might assume, therefore, that the Presidency is to be in charge of the judicial aspects. For elucidation as to what are the judicial aspects, it is useful again to consider the experiences of the ICTY and the ICTR. The ICTR has a ‘Judicial and Legal Services Division’ comprising a Court Management Section, Victims and Witnesses Support Unit, Lawyers and Detention Facilities Management Section and the Reference Library.124 Likewise, the ICTY Registry comprises two departments—a judicial department, headed by the Deputy Registrar (usually a senior lawyer), and an administrative department, headed by the Chief of Administration. The judicial department consisted of four (now five) units: the victims and witnesses unit, the court management unit, defence counsel unit, and the detention unit.125 The work of each of these units has judicial aspects in that they have to apply regulatory texts of a judicial nature—the Directive on the Assignment of Defence Counsel, the Rules and Regulations governing Detention, etc. The question arises as to which organ, under the ICC Rules, will perform these functions. It cannot be the Registry, because the ICC Registry is charged with only the non-judicial aspects of the Court’s work and, as stated, these are judicial aspects. But if it is the Presidency, then it will not have the staff to do it; indeed there is no provision for the Presidency to have any support staff.

It is submitted, therefore, that the provision in Article 37 to the effect that the Registry shall only have non-judicial functions was not very well thought through. It is likely that it is one of the answers to the Paschke Report, intended to emphasize that ‘the Registry is not an independent body in itself and its objective is to service the other two organs of the Tribunal’.126 But this is the sort of cure that may kill the patient.

(p. 263) V. The Chambers

A. Introduction

As soon as possible after their election, the ICC judges will organize themselves into the three judicial divisions: the Appeals Division, a Trial Division, and a Pre-Trial Division.127 The Appeals Division will comprise the President and four other judges, the Trial and Pre-Trial Divisions each comprise at least six judges.128 Alternate judges are provided for, on a case-by-case basis, in Article 74(1) of the Rome Statute and in Rule 39 of the ICC RPE.

B. History of Provision

There are some differences between Article 9 of the ILC Draft Statute (‘Chambers’) and Article 39 of the Rome Statute. The ILC Draft provision that ‘No judge who is a national of a complainant State or of a State of which the accused is a national shall be a member of a Chamber dealing with the case’129 has, rightly, been dropped. It would offend the notion of judicial independence and impartiality to assume that a judge is unable to be objective in a case which involves the State of which he or she is a national.

Article 9(1) of the ILC Draft Statute also provided that the Presidency would decide how to constitute the Appeals Chamber. This was changed because it would have given too much power to the Presidency.130 The Rome Statute, however, leaves it open as to who will make these assignments.131

The suggestion made in the PrepCom that there be special chambers, e.g. a remand chamber, was evidently not accepted.132

C. The Rome Statute

Under the Rome Statute, the assignment of judges to divisions is to be based on the nature of the functions to be performed by each division.133 Further, ‘[t]he Trial and Pre-Trial Divisions shall be composed predominantly of judges with (p. 264) criminal trial experience.’134 It would seem that the Appeals Chamber would then be composed mostly of international lawyers.

If that is the intention, then it is something of a stereotype and may have certain undesired effects. While matters of international law may certainly come on appeal, appeals based on alleged errors of criminal law and procedure or of fact will be equally, if not more, common. A judge with criminal appellate experience, or a comparative criminal lawyer, may be as competent to decide these matters as an international lawyer. At the same time, international humanitarian lawyers should also serve in the Pre-Trial and Trial Divisions in order to contribute their specialist knowledge as to how this body of law should be applied. A further reason for not concentrating the criminal lawyers at the pre-trial and trial level and the international lawyers at the appeals level is that this might encourage mutual mistrust and incomprehension between the two ‘clans’ of lawyers, which could in turn lead to a surfeit of decisions overturned on appeal, with the international lawyers in the appellate chamber having the final say on the interpretation of the law applied by the ICC. This in turn would thwart the intention of other provisions of the Statute, which emphasize the importance of criminal law expertise on the Court.

It is submitted that there is no simple formula for how judges should be allocated among the divisions. Much indeed will depend on the individual qualifications, and personalities, of the particular judges concerned. It is impossible for the Rome Statute to comprehensively legislate on this matter and probably just as well that it did not attempt to do so.

Article 39(4) makes it clear that Appeals Chamber judges do not rotate.135

D. Comparison with Other International Courts and Tribunals

1. The Nuremberg and Tokyo Tribunals

The Nuremberg Tribunal comprised four judges, or ‘members’, each with an alternate.136

The Tokyo Tribunal was the creature of the Supreme Commander for the Allied Powers, General MacArthur, and the members of the Tribunal were appointed by (p. 265) him from names submitted by the signatories to the Instrument of Surrender, India and the Commonwealth of the Philippines.137

The fact that the Nuremberg and Tokyo judges were referred to as ‘members’ is revealing, since in criminal procedure the term evokes the notion of ‘members of the jury’. Thus, the Nuremberg and Tokyo Charters referred to its judges using the language of triers of fact, not of triers of law. In a common law system, the judge is the trier of law to whom the jury looks for the statement of the law, and the jury is the trier of fact, charged with applying that law, given to them by the judge, to the facts as adduced at trial. At Nuremberg, the Charter stated the law to be applied.138 The intention seems to have been for the Nuremberg judges simply to apply the law contained in the Charter to the facts as they found them, and not to search for the law beyond the Charter, or even to interpret that law. Whether, in the event, the Nuremberg judges confined themselves to these parameters or whether, on the contrary, they went beyond them and made law, is another question. But it raises the question: will the ICC judges act as mere triers of fact and take the Rome Statute as their ‘law’, and simply apply that law to the facts as they find them, or will they consider themselves triers of law with the power to shape and interpret the law as they apply it and even to create new law by precedent (i.e. judge-made law)? The Rome Statute does not provide an answer to this question: the outcome will depend on judicial behaviour.

2. The ICJ and the Law of the Sea Tribunal

Both the ICJ and the Law of the Sea Tribunal may form separate chambers to deal with particular cases or categories of cases.139 There is no appellate instance in either court. An appellate instance is considered essential only in criminal courts because of the human right to have a criminal conviction reviewed by a higher authority.140

(p. 266) 3. The ICTY and ICTR

While the ICTY, unlike the ICC, allowed rotation of judges between the trial and appeal levels, this was born of necessity as there were an insufficient number of judges in the ICTY’s early days to do otherwise.

E. Comments and Suggestions

Rotation between the trial and appellate instances is problematic—not because there is any risk of a judge sitting on the trial and appeal of the same case,141 as that is clearly impermissible—but because appellate rulings cannot then be considered as carrying greater authority than trial rulings: since appellate and trial judges are interchangeable, appeals judges cannot claim any seniority or special status justifying their prerogative to overturn trial decisions, except that they outnumber the trials judges (an appeals chamber consists of five judges while a trial chamber consists of three). But even this numerical aspect may prove illusory where there are dissenting opinions. To take an example, if a Trial Chamber votes two to one to acquit an accused, and, on appeal by the Prosecutor, the Appeals Chamber votes three to two to convict him, then of eight judges, four are in favour of an acquittal and four are in favour of a conviction. Yet the accused would be convicted because of the Appeals Chamber’s (majority) ruling, even though its only authority over the Trial Chamber lies in the fact that it has more judges. This is an inescapable paradox where there is rotation between the instances.

For this reason, it would have been better if the Rome Statute had found a way to ground the authority of the Appeals Chambers’ judgments in some objective criterion. For example, if there were an ‘appeal judges’ list and a ‘trial judges’ list for the election of judges, rather than a ‘criminal lawyers’ and an ‘international lawyers’ list. That is not to say that candidates for the appeals chamber would have already to be appeals judges in their own national system—although that might be desirable—but that they would have to possess some extra seniority entitling them to such a nomination.

The wording of Article 39(3)(a) and (4) may, however, leave the door open for ‘promotion’ of Trials and Pre-Trials judges to the Appeals Chamber, although it is not explicitly so stated.142 If so, that would go some way to resolving the problem.

(p. 267) Select Bibliography


  • T. Taylor, The Anatomy of the Nuremberg Trials (1992);
  • L. Friedman (ed.), The Law of War: A Documentary History, Vol. II (1972).
  • ICJ

  • S. Rosenne, The World Court: What It Is and How It Works (1995);
  • A. Eyffinger, The International Court of Justice, 1946–1996 (1996).

  • V. Berger, Jurisprudence de la Cour Européenne des droits de l’homme (6th edn., 1998);
  • J. R. W. D. Jones, The Practice of the International Criminal Tribunals for the former Yugoslavia and Rwanda (2nd edn., 2000).

  • V. Morris and M. Scharf, The International Criminal Tribunal for Rwanda (1998).

  • W. de Saint-Just, ‘Le Statut de la Cour pénale internationale est-il “en amélioration” par rapport à ceux du Tribunal international pour l’ex-Yougoslavie et du Tribunal pénal international pour le Rwanda?’, Gazette du Palais (12–16 November 1999) 2.(p. 268)


1  L. Wittgenstein, On Certainty (1969), para. 343, ‘… If I want the door to turn, the hinges must stay put’.

2  Arguably, the ICC is the first international criminal court to be created by treaty.

3  Art. 34 of the Rome Statute.

4  Official Records of the General Assembly, Forty-Ninth Session. Supp. No. 10 (A/49/10) (1994), ch. II.B.I.5; and A/49/355, ch. II.

5  The United States also suggested changing the name of the Presidency to ‘Administrative Council’. This suggestion was not adopted but it indicates the role which was envisaged for that organ. See Report of the Preparatory Committee on the Establishment of an International Criminal Court (General Assembly, Official Records, Fifty-First Sess., Supp. No. 22A (A/51/22) (1996), Vol. II (Compilation of Proposals) ) (hereinafter ‘1996 PrepCom Report/Proposals’), p. 7.

6  See Report of the Preparatory Committee on the Establishment of an International Criminal Court, General Assembly, Official Records, Fifty-First Session, Supp. No. 22 (A/51/22), Vol. I (Proceedings of the Preparatory Committee during March–April and August 1996), (hereinafter ‘1996 PrepCom Report/Proceedings’), para. 33: ‘… the view was expressed that an indictment or an investigations chamber for pre-trial procedures should be added and that it should be composed of three judges with the necessary authority to monitor preliminary investigative matters. A view was also expressed that a pre-trial chamber should be established to carry out such pre-trial procedures as issuing warrants and deciding upon indictment and admissibility….’ A proposal was also made ‘to create special chambers to deal with certain cases, for example, genocide’ (para. 34, 1996 PrepCom Report/ Proceedings). This proposal was not adopted.

7  Art. 2 of the Nuremberg Charter.

8  Arts. 14 and 15 of the Nuremberg Charter.

9  Art. 2 of the Tokyo Charter.

10  Art. 3 of the Tokyo Charter.

11  Art. 92 of the United Nations Charter.

12  Arts. 2 and 3 of the ICJ Statute.

13  Art. 34(1) of the ICJ Statute. Pursuant to Art. 96 of the United Nations Charter, the United Nations General Assembly, and Security Council, as well as other United Nations organs and specialized agencies, may request advisory opinions from the ICJ on legal questions.

14  For a detailed discussion of the ICJ Registry, see A. Eyffinger, The International Court of Justice, 1946–1996 (1996) 104–113. Eyffinger notes, at 104, ‘Though numerous articles of the Statute referred to the Registrar, it seems that at the time of the drafting there was little appreciation of the importance of the post. Apparently the later developments, which made the office so vital to the functioning of the Court, were not foreseen. From a clerk of the Court, the Registrar developed into the head of an institution called the Registry—which surprisingly enough was not mentioned in the Statute.’ See also S. Rosenne, The World Court: What It Is and How It Works (1995) 77: ‘The Registry staff… form a highly trained cadre which can be supplemented whenever necessary by temporary assistance. Their duties have been officially classified under four heads, which in fact overlap: judicial, diplomatic, administrative and linguistic. They are specified in greater detail in the Court’s Instructions for the Registry.’

15  Eyffinger, supra note 14, at 108.

16  Art. 2(1) of the Statute of the Law of the Sea Tribunal.

17  Art. 12(2) of the Statute of the Law of the Sea Tribunal.

18  A third Trial Chamber was added to both the ICTY and the ICTR to facilitate their work, given the large numbers of accused persons in custody. This required amendment of their Statutes by the Security Council. The ICTY Statute was so amended by SC Res. 1166 (13 May 1998) and the ICTR Statute by SC Res. 1165 (30 April 1998).

19  Art. 11 of the ICTY Statute; Art. 10 of the ICTR Statute.

20  Rule 23 of the RPE of the ICTY and ICTR.

21  This is discussed further below under Art. 38 of the Rome Statute (‘The Presidency’).

22  See ICTY Rules 65ter (‘Pre-Trial Judge’) and 73bis (‘Pre-Trial Conference’), both added to the ICTY’s Rules of Procedure and Evidence at its eighteenth plenary session on 9–10 July 1998.

23  See France’s proposal for amending Art. 9 of the ILC Draft Statute to include a reference to ‘Preliminary Investigations Chambers’ which would ‘perform pre-trial functions’ (1996 PrepCom Report/Proposals, pp. 21–22).

24  See Report of the Secretary-General on the ICTY Statute, 3 May 1993 (S/25704), para. 69.

25  See infra note 113.

26  See K. A. A. Khan, ‘Art. 34’, in Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (1999) 593, for a brief discussion of this point.

27  Rule 21 (‘Assignment of legal assistance’) of the ICC RPE follows this system. A ‘duty counsel’ system, such as has been put in place at the ICTR, where local counsel are assigned to give immediate advice to an accused—including advice on the selection of a defence lawyer for the trial—may also be beneficial.

28  See Ch. 33 below.

29  A jury of lay persons in an international court seems never to have been put forward as a practical proposition, although it is not inconceivable. The main practical problems would be (a) defining the ‘pool’ from which jurors would be drawn (all the citizens of the world?), (b) creating a workable framework for jury challenges, and (c) catering for all the languages that a twelve-man international jury might speak. These problems ate not insurmounrable and there seems to be no reason in principle why an international lay jury should not exist. A jury of the accused’s peers in an international setting could prove—as it has proven in common law countries—to be a fundamental bulwark and protection against judicial, prosecutorial, and/or executive tyranny.

30  Art. 36(1). This number may, however, be increased, pursuant to Art. 36(2), by the Assembly of States Parties on the proposal of the Presidency acting on behalf of the Court. This provision was not included in the ILC Draft Statute.

31  Art. 36(3)(a).

32  Art. 35(1).

33  Art. 35(3). This must be read to mean the members of the Court rather than the members of the Presidency. By definition, the Presidency must consult its members before it takes any decision qua Presidency (Art. 38(3)).

34  Arts. 35(4) and 49.

35  1996 PrepCom Report/Proceedings, para. 37: ‘In order to ensure that merit would be a paramount consideration in the election of judges, suggestions were made to the effect that candidates should be nominated either by a nominating committee or by national groups, as in the nomination of candidates for the International Court of Justice.’ As pointed out below, however, the resulting Art. 36(4)(a) is incoherent in providing that State Parties can nominate a candidate through the PCA National Groups, while these are mutually exclusive nominating bodies.

36  Art. 6(3) of the ILC Draft Statute reads, ‘Eighteen judges shall be elected by an absolute majority vote of the States parties by secret ballot. Ten judges shall first be elected, from among the persons nominated as having the qualification referred to in paragraph 1(a) [criminal trial experience]. Eight judges shall then be elected, from among the persons nominated as having the qualification referred to in paragraph 1(b) [recognized competence in international law].’

37  Art. 40(2).

38  Art. 10(3) of the ILC Draft Statute.

39  Art. 40(4).

40  Art. 16(2) of the ICJ Statute reads, ‘Any doubt on this matter [judicial independence] shall be settled by a decision of the Court.’

41  Art. 11(2) of the ILC Draff Statute.

42  Art. 41(2)(a). Rule 34 (‘Disqualification of a judge, the Prosecutor or a Deputy Prosecutor’) of the ICC RPE has indeed expanded upon the potential grounds for disqualification. This list, too, is, however, non-exhaustive (‘… shall include, inter alia, the following …’).

43  Art.4l(2)(c).

44  See para. 45 of the PrepCom Report/Proceedings.

45  Art. 36(3)(a).

46  Art. 36(3)(c). The phrase, ‘excellent knowledge of and … fluent in’, is a bit awkward. If a candidate is fluent in a language, then, by definition, he or she has an excellent knowledge of it. One might therefore be led to believe that what this provision requires is fluency in one working language and an excellent working knowledge of the other. But this interpretation is belied by the words, ‘at least one’, which shows that the requirements of fluency and excellent knowledge may apply to a single language.

47  Art. 50(2). Although see Rule 41 (‘working languages of the court’) of the ICC RPE, which compels ‘the use of an official language of the court as a working language’ under certain circumstances, and which permits its use ‘if [the Presidency] considers that it would facilitate the efficiency of the proceedings’.

48  Art. 36(4)(a).

49  Art. 36(4)(a)(i).

50  Art. 36(4)(a)(ii). The ILC Draft Statute proposed a direct nomination method (Art. 6(2) of the ILC Draft Statute). The ICJ nomination system was proposed during the PrepCom discussions ‘to ensure that merit would be a paramount consideration in the election of judges’ (para. 37 of the PrepCom Report/Proceedings). For the contradiction inherent in ‘indirect nomination’ by States Parties, see supra note 35.

51  Art. 36(4) (b). The ICJ has a similar provision. See Art. 5(2) of the ICJ Statute. Brownlie notes that, ‘Groups may and often do nominate persons of other nationalities’ (I. Brownlie, Principles of Public International Law, 5th edn. (1999) 717).

52  Art. 36(4)(c).

53  Art. 36(5). The ILC Draft Statute’s strict division of judges into two camps—the criminal judges and the internationalists (see Art. 6(1), (2), and (8) of the ILC Draft Statute)—has been toned down in the Rome Statute, although not done away with entirely.

54  Art. 6 of the ILC Draft Statute provided for candidates with ‘recognised competence in international law’. This formula has, properly, been narrowed down to require experience in ‘international humanitarian law and the law of human rights’, and not recognized competence in, for example, the law of the sea or private international law.

55  Art. 36(6)(a).

56  Art. 36(6)(b).

57  Art. 36(7). This is a standard provision in the statutes of international courts and tribunals: Art. 3(1) of the Statute of the ICJ, Arts. 12 and 13(2)(b) and (d) of the ICTY Statute, Arts. 11 and 12(3)(b) and (d) of the ICTR Statute, and Art. 3(1) of the Statute of the Law of the Sea Tribunal. See the ‘Comparison with Other International Courts and Tribunals’ section, below.

58  Art. 36(8)(a).

59  Art. 36(8)(b).

60  Art.36(9)(a).

61  Art. 36(10). Corresponding provisions are Art. 13(3) of the ICJ Statute and Rule 14bis of the ICTR RPE.

62  Art. 37(1).

63  Art. 37(2) reads, ‘A judge elected to fill a vacancy shall serve for the remainder of the predecessor’s term and, if that period is three years or less, shall be eligible for re-election for a full term under article 36.’

64  Art. 40(4).

65  Art. 41(2)(a). This list has been supplemented by Rule 34 of the ICC RPE.

66  Art.41(2)(b).

67  Art. 41(2)(c).

68  Art. 4l(2)(c), reflecting the principle of natural justice, audi alteram partes (‘I heard the other side’).

69  A signatory could replace its member, unless the case had started, in which case the member could only be replaced by his alternate.

70  Art.36(3)(a).

71  Art. 2 of the ICJ Statute. See, for comparison, Art. 13(1) of the ICTY Statute and Art. 12(1) of the ICTR Statute.

72  Brownlie, supra note 51, at 717.

73  See Art. 36(3)(b)(ii). While this article does contemplate the appointment of a proportion of judges on the basis of their ‘competence in relevant areas of international law such as international humanitarian law and the law of human rights’, as opposed to competence in criminal law and procedure, it requires that this international law expertise be accompanied by ‘extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court’. One might imagine, for example, a senior legal officer of the ICRC satisfying this criterion.

74  Eyffinger, supra note 14, at 155.

75  Ibid.

76  See Art. 4(2) of the ICJ Statute.

77  Note, however, that under the ICJ system, the judges are still elected directly by the States. The ICJ nomination system is in fact flawed in several respects. For example, a candidate need be nominated by only one National Group, and that may be the National Group of which he is himself a member. Thus, a member of a National Group may use his membership as a springboard to nomination. Another problem with the procedure is that the National Groups may, and usually do, comprise four members. Thus, if the National Group is split 2:2 (which happens), then there is deadlock in nominating a judge.

78  Art. 13(1) of the ICJ Statute. Re-election is not uncommon at the ICJ. Judge Manfred Lachs served as an ICJ Judge for 26 years.

79  Art. 16(1) of the ICJ Statute.

80  Art. 17(2) of the ICJ Statute.

81  Art. 13(4) of the ICTY Statute.

82  See Rule 14bis of the ICTR’s RPE. This situation arose at the ICTY, when Judges KaribiWhyte, Odio-Benito, and Jan continued to sit in the Delalić et al. case after their terms had ended. Notwithstanding the absence of an express provision on this subject, their continuation in office was justified on the basis that the terms and conditions of service of the ICTY judges were the same as that of ICJ judges (Art. 13(4) of the ICTY Statute). Since ICJ judges ‘shall finish any cases which they may have begun’, pursuant to Art. 13(3) of the ICJ Statute, ICTY judges must do likewise. In the event, the judges’ terms of office were formally extended by the SC in its Res. 1126 (27 August 1997).

83  Art. 12(5) of the ICTR Statute.

84  See ICTY 1st Annual Report, para. 31, reproduced in the ICTY’s Yearbook 1994, p. 90: ‘31…. the absence of any proper financial authorization by the General Assembly necessarily had led the Secretary-General to decide that the judges could be paid on an ad hoc basis only to the end of December 1993’.

85  See the Decision rendered in Kovačević of 9 April 1998, allowing a judge’s voluntary withdrawal from the case.

86  At the ICTY, to date, six judges have resigned or announced their intention to resign and one judge has died while in office.

87  Art. 13(1) of the ICTY Statute and Art. 12(1) of the ICTR Statute.

88  See the decisions listed in note 118. None of the motions for disqualification succeeded. In that light, it might be feared that the judges, guided by a misplaced sense of ‘professional courtesy’, are reluctant to disqualify a fellow judge, not least where the judge in question has already been challenged and has not voluntarily withdrawn.

A motion for disqualification, pursuant to ICTR Rule 15, was similarly rejected at the ICTR in the Barayagwiza case on 18 October 1999.

There is an abundance of case-law of the European Court of Human Rights on this subject, to which the ICC may ultimately have recourse. See, for example: Hauschildt v. Denmark (24 May 1989); Jón Kristinsson v. Iceland (7 March 1990); Padovani v. Italy (26 February 1993); Nortier v. Netherlands (24 August 1993).

89  See W. St Just, ‘Le Statut de la Cour pénale internationale est-il “en amélioration” par rapport à ceux du Tribunal international pour l’ex-Yougoslavie et du Tribunal pénal international pour le Rwanda?’, Gazette du Palais (12–16 November 1999) 2: ‘Mais, qui va apprécier que les candidates jouissent d’une haut considération morale et sont compétents? Il serait nettement préférable que les candidats aux postes de juge soient recrutés sur concours avec les garanties nécessaires comme cela existe en France.’

90  For a brief history of the proposed Committee, see M. R. Rwelamira, in R. S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute (1999) 163–164: ‘… some delegations were concerned that the nomination procedure contained in the Draft Statute submitted by the Preparatory Committee did not offer States Parties much information about the candidates or a basis on which to assess the qualities and merits of the candidates. It was argued that this could lead to the politicisation of the electoral process. In response to this concern, the United Kingdom delegation proposed the formation of a screening committee consisting of Chief Justices of each State Party, which would examine nominations of all candidates and, where necessary, seek further information from them…. The notion of a screening process, albeit a non-binding one, was received with suspicion and reservations by many delegations…. Largely due to the suggestion of the French delegation, it was finally agreed that an Advisory Committee on nominations should be set up by the Assembly of States Parties when and if the Assembly found it necessary to do so.’

91  Art. 6 of the ICJ Statute.

92  Consistent with this approach, Art. 42(4) of the Rome Statute provides that the Prosecutor and Deputy Prosecutors hold office for a term of nine years and are not eligible for re-election.

93  See Art. 9 of the ICJ Statute, Art. 13(2)(c) of the ICTY Statute, Art. 12(2)(c) of the ICTR Statute, and Art. 2(2) of the International Tribunal for the Law of the Sea.

94  Unlike the ICJ Statute (Art. 38), however, but like the ICTY and ICTR Statutes, the ICC Statute does not contain an article on the sources of law to be applied by the Court.

95  See e.g. the Delalić et al. final Judgment of 16 November 1998, para. 159 (stating that the ICTY’s Statute and Rules are a fusion of common law and civil law), and the Blaškić Hearsay Decision of 21 January 1998 describing the ICTY as a ‘hybrid system’, namely a blend of common law and civil law.

96  Apparently a proposal which would have referred to ‘gender balance’ was opposed by China and the Arab States precisely because they feared that it meant parity. See Rwelamira, in Lee (ed.), supra note 90, at 166.

97  Although there are other interpretations as to precisely what the presumption of innocence entails.

98  Art. 40(2).

99  ‘[I]t is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.’ Lord Chief Justice Hewart, R. v. Sussex Justices, ex parte McCarthy [1924] 1 KB 256, 259. See also the discussion of this issue, in the context of arbitrators’ independence and impartiality, in Laker Airways v. FLS Aerospace Limited, Queen’s Bench Division, 20 April 1999.

100  See Decision of the Bureau on the post-trial application by Anto Furundzija to the Bureau for the disqualification of Presiding Judge Mumba, rendered in Furundžija 11 March 1999.

101  R. v. Bartle and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet [1999] 2 WLR 272. See, in this connection, The Times Law Supplement, 12 October 1999, p. 3 (‘Why justice must be done and seen to be done’).

102  Art. 38(1).

103  Art. 8(3)(a) of the ILC Draft Statute.

104  Art. 38(3)(a) (emphasis added).

105  Art. 38(3).

106  Art. 38(3)(a).

107  Art. 38(3)(b).

108  For a non-exhaustive list of these functions, see J. Deschênes, ‘Art. 38’, in Triffterer (ed.), supra note 26, at 613.

109  Art. 35(2).

110  See 1996 PrepCom Report/Proceedings, para. 24, commenting on the ILC’s Draft Statute: ‘It was suggested that the Court could function at least initially as provided for in articles 4 and 5 of the draft Statute. The Presidency, the Prosecutor’s office and the Registry (and perhaps one judge for the conduct of the investigation and indictment phase) could be of a standing nature, while the Trial Chamber would be convened as required. This system was regarded as sufficienrly balanced, at least for the initial functioning of the Court, and would not result in needless costs.’

111  Arr. 24(2) of the ICJ Statute.

112  See Art. 8(2) and (3) and Art. 12(1) of the Statute of the Law of the Sea Tribunal.

113  Art. 14(1) of the ICTY Statute and Art. 13(1) of the ICTR Statute. A de facto Presidential office grew up around both the ICTY and ICTR Presidents. ICTY President McDonald, for example, in 1999, employed a chef de cabinet(P-5 level, in the United Nations system), special assistant (P-2), legal assistant (P-2), secretary and intern in her office. The need for such a cabinet reflects the President’s workload and dual role as an appellate judge and as President with ‘quasi-diplomatic’ functions (receiving official visits, giving speeches, reporting to the United Nations General Assembly and Security Council pursuant to Art. 34 of the Statute and Rules 7 bis, 13, 59(B) and 61(E)) and administrative responsibilities (overseeing the work of the Registry pursuant to Rule 33).

114  Rule 20 of the RPE of the ICTY and the ICTR.

115  Art. 14(2) and (4) of the ICTY Statute and Art. 13(3) of the ICTR Statute. For historical reasons, the Presiding Judge of the common ICTY/ICTR Appeals Chamber is also the President of the ICTY, but not of the ICTR. The President of the ICTR is, of necessity, an ICTR trial judge.

116  Rule 23 of the RPE of the ICTY and the ICTR. Note, however, that at the ICTR it is only ‘the most senior Presiding Judge of the Trial Chambers’ who is a member of the Bureau. Where the ICTR President or Vice-President is the most senior Trial Chamber Presiding Judge, then Rule 23 (A) states that ‘the Presiding Judge of the other Trial Chamber shall sit as a member of the Bureau’. Since there are now three Trial Chambers, this Rule will have to be amended to provide, for example, that the next most senior Trial Chamber Judge will sit as a member of the Bureau in that case.

117  Rule 23(B) of the RPE of the ICTY and the ICTR.

118  See, for example:

  • •  Application by Croatia to disqualify Judge McDonald from sitting in the Blaškić subpoena hearings, referred to the Bureau on 16 April 1997 and unanimously rejected;

  • •  Application to disqualify Judge Jorda and Judge Riad from sitting in the Kordić and Čerkez trial, rejected by the Bureau on 4 May 1998;

  • •  Decision of the Bureau on Motion for Judicial Independence, on 4 September 1998, rejecting the Defence application to disqualify Judge Odio-Benito because she had become the holder of executive office (the Vice-President of Costa Rica); and

  • •  Decision of the Bureau on the post-trial application by Anto Furundžija to the Bureau for the disqualification of Presiding Judge Mumba, etc, rendered in Furundžija on 11 March 1999 (the Bureau declining jurisdiction).

119  This may, in part, explain the Bureau’s Decision in Furundžija of 11 March 1999, to decline jurisdiction. The Bureau considered that it was being asked to act like an Appeals Chamber and to vacate the judgment in question and order a new trial. This it, rightly, declined to do. The ICC Presidency should take note and avoid exercising an appellate function over the activities of the Trial Division on substantive matters of international criminal law.

120  Art. 38(4).

121  Deschênes, in Triffterer (ed.), supra note 26, at 614, expresses a contrary view: ‘… we are dealing here with administrative matters: there is no reason in the world why judges and prosecutor, being after all persons of good faith who have willingly decided to devote their careers to a joint purpose of public interest, should not be able to steer together the administration of the court into a common satisfactory canal.’ The problem with this view is that it neglects the fact that real issues of substance can shelter behind ‘administrative matters’—and can therefore become highly contentious—and that the exclusion of defence counsel from this consultative process creates a form of procedural inequality.

122  See the Order of the President on applications to assign a case to a Trial Chamber rendered on 21 April 1998.

123  See the Decision of the President on the Prosecutor’s Motion for the Production of Notes Exchanged between Zejnil Delalić and Zdravko Mucić dated 11 November 1996.

124  See paras. 67–93, Fourth Annual Report of the ICTR dated 7 September 1999 (A/54/315; S/1999/943).

125  See the ICTY’s Third Annual Report (1996), paras. 98–126, and Fourth Annual Report (A/52/375, 18 September 1997), paras. 77–99. By the time of the Fifth Annual Report (A/53/219, 10 August 1998), a new unit had been added to the judicial department, namely the Chambers Support Unit, comprising the law clerks and senior legal officers assisting the judges. See para. 137 of the Fifth Annual Report: ‘The Chambers Support Unit … was established as a formal unit in January 1998, to reflect the actual practice of providing legal support to Chambers through the Registry.’ Before then such support had been provided by gratis personnel seconded by the European Union through the intermediary of the International Commission of Jurists.

126  Part III (‘Findings’) of the Paschke Report (A/51/789), dated 6 February 1997.

127  Arts. 39(1) and 34(b).

128  Art. 39(1). This accounts for 17 of the 18 judges. The eighteenth judge will, therefore, be either assigned to the Trial Division or to the Pre-Trial Division, or a ‘floater’, who is available to serve in either Division as required.

129  Art. 9(7) of the ILC Draft Statute.

130  See para. 43 of the PrepCom/Proceedings, ‘It was further proposed that the Appeals Chamber, as well as the Trial Chambers, should be elected by the Court rather than appointed by the Presidency, as it was felt that this would enhance the objectivity of the Chambers.’ The suggestion was also made that ‘appointments to the Trial Chambers should be by rotation or by drawing lots’.

131  See Deschênes in Triffterer (ed.), supra note 26, at 616.

132  Ibid.

133  Art. 39(1).

134  Art. 39(1).

135  See Art.39(4).

136  Art. 2 of the Nuremberg Statute. The ‘members of the Tribunal’ were Sir Geoffrey Lawrence (later Lord Oaksey), who was elected Chairman, for the UK, with Sir Norman Birkett (later Lord Birkett) as his alternate; Mr Francis Biddle, representing the USA, with Judge John J. Parker his alternate; M. le Professeur Donnedieu de Vabres, representing France, and his alternate, M. le Conseiller Falco; and Major-General I. T. Nikitchenko, for USSR, and his alternate, Lt.-Colonel A. F. Volchov.

137  Art. 2, Tokyo Charter. There were 11 members of the Tokyo Tribunal: Sir William Webb, President (Australia), Lord Patrick (UK), Justice McDougall (Canada), Justice Mei (China), Justice Bernard (France), Justice Röling (Netherlands), Justice Northcroft (New Zealand), Justice Major-General Zarynov (USSR), Justice Jaranilla (Philippines), Justice Pal (India), and Justice Higgins, succeeded by Major-General Cramer (USA).

138  As the Nuremberg Tribunal declared in its Judgment, ‘the law of the Charter is decisive and binding upon the Tribunal… . The Signatory Powers created this Tribunal, defined the law it was to administer, and made regulations for the proper conduct of the Trial’ (Leon Friedman (ed.), The Law of War: A Documentary History, Vol. II (1972) 936; emphasis added). The law of the Charter, therefore, could constitute a type of legislation for the occupied territory of Germany, although the Tribunal was also concerned, as a matter of fairness to the accused, to show that the law of the Charter was not ex post facto but reflected existing international law (for example, that it reflected the Kellogg-Briand Pact’s prohibition on the use of war to resolve international disputes and as an instrument of national policy).

139  Art. 26 of the ICJ Statute; Art. 15 of the Statute of the Law of the Sea Tribunal.

140  See e.g. Art. 14(5) of the International Covenant on Civil and Political Rights and para. 116 of the Secretary-General’s Report on the ICTY Statute, 3 May 1993 (S/25704).

141  Somewhat disingenuously, this has been given as the reason for not permitting rotation in the Rome Statute. See e.g. Rwelamira in Lee (ed.), supra note 90, at 158: ‘The rationale behind this provision [non-rotation] is to avoid the possibility of a judge who had presided over a matter in the Pre-Trial or Trial Chamber presiding over an appeal in the same matter in the Appeals Division.’

142  In fact, Art. 39(3) and (4) are completely obscure as to whether a Trial or Pre-Trial judge may be moved ‘up’ to the Appeals Division referred to in Art. 39(4). Art. 39(3)(a) states that, ‘Judges assigned to the Trial and Pre-Trial Divisions shall serve in those divisions for a period of three years …’, which, given that judges generally serve for nine years, implies that they will move from one Division to the next every three years. But this is not explicitly stated and it would be difficult to justify implementing such a ‘promotion’ in the absence of an express provision.