Judging the International Criminal Court

Judges are at the very heart of any judicial system. They interpret and apply the law and control proceedings, rule on evidence and deliver verdicts and sentences. Judges are expected to use their extensive legal training and expertise in jurisprudence to interpret complex legislation and legal precedents, which often creates binding law for future cases. The quality and performance of judges will affect the institutional legitimacy and credibility of any court and, given the controversy surrounding them, particularly international courts. The Max Planck Encyclopedia of International Procedural Law, a comprehensive, peer-reviewed digital resource from the Max Planck Institute and Oxford University Press, makes the clear point that “The election of judges has an impact on the legitimacy and efficiency of any court.” The selection of judicial candidates for the bench of any court is therefore a critical process.

Heralded at the time as a much needed centre of judicial excellence on the world stage, the International Criminal Court (ICC) opened its doors in 2002. Twenty-four years later the Court can be seen as living on life support buffeted by professional, ethical and sexual scandals and criticised for systemic underperformance. At the heart of its malaise have been the lacklustre judges who have sat on its bench. In December 2025, on the occasion of the 24th session of the Assembly of States Parties (ASP), the body responsible for electing judges at the ICC, the International Bar Association once again called on the Assembly to strengthen “processes for the nomination and election of ICC officials.” This was yet another attempt by supporters of the ICC to draw attention to the hole-in-the-heart of the Court, incompetent judges. It is a matter of record that the ASP was warned on the occasion of the very first election of judges in 2003, and on every election cycle since, not to engage in vote-trading for judges. Corrupt FIFA-esque vote-trading results in mediocrity not the excellence required of judicial appointments. The practice has clearly continued nonetheless as a systemic failure within the Court. In November 2025, on the eve of the elections for six new judges for 2027-2036, the IBA found it necessary to call on the ASP to “urgently establish independent, transparent and merit-based national nomination processes to put forward the highest qualified candidates for ICC judges [emphasis added].” The IBA also repeated its call for the ASP to take “measures to address the issue of vote trading.” This plea echoed similar calls by the IBA in October 2024 for ICC member states to “reject vote trading as it undermines the Assembly’s efforts to elect highly qualified judges and the credibility of the ICC.” The IBA suggested that the Assembly should instead focus on voting for people who can “manage and conduct complex international criminal trials”. It is shocking that these sorts of pleas were still being made well over twenty years into the existence of the International Criminal Court. It also explains the appalling record and reputation of the Court to date.

The following are just a few of the many occasions when concern about vote-trading for judges at the Court has been voiced over the years. Ahead of the first elections for ICC judges in 2003, Amnesty International warned States Parties not to engage in “government lobbying campaigns, which are often based on unseemly secret agreements to trade support for candidates for other political goals.” Amnesty repeated its warning again, ahead of the 2006 election of judges and the issue of vote-trading continues to be flagged in every one of its advisory publications since. In 2011, in the face of increasing failures at the Court, the ASP established an Advisory Committee on Nominations of judges of the ICC with the mandate “to facilitate that the highest-qualified individuals are appointed as judges of the International Criminal Court”. Evidently unseized of the urgency of the matter the Committee eventually held its first meeting in 2013. The Committee, described euphemistically by the Encyclopedia of International Procedural Law as “far from decisive”, is clearly powerless and has been ignored.

In 2019, the Encyclopedia of International Procedural Law noted that the “election of judges of the ICC has at times raised concerns about the quality of the process, both for the nomination process at the national level and the election process in the Assembly of States Parties.” Equally euphemistically it observed, seventeen years after the Court had commenced work, that “it is too early to contemplate whether the rules on election of judges have met all their set goals.” Raising the Bar, an Open Society Justice Initiative report published in the same year, concluded that “vote trading and a toxic campaigning culture corrupt[s] the judicial election process”.  The Independent Expert Review of the failings at the ICC, commissioned by the ASP and released in 2020, admitted that “the Court’s problems may be in part the result of the standard of some of the Judges . . . some Judges have owed their success in the ballot more to electoral horse-trading than competence.” In 2021, the International Justice Monitor confirmed that “Toxic campaigns and vote trading remain a concerning part of the ICC judicial election season every three years.” Fast forward to 2023, in the 21st anniversary year of the Court’s existence, and Amnesty International was still recommending that “States parties should elect the most-qualified candidates in a merit-based and transparent election process, free from vote-trading and political considerations [emphasis added].”

The result of the rampant and unashamed vote-trading at the ICC has been the election of people as judges who have never been lawyers, let alone judges before their appointment. The resultant judges have in some cases instead been diplomats, washed-up politicians, civil servants and non-governmental organisation activists. In one instance, a Japanese diplomat was elected as an ICC judge despite lacking any qualification whatsoever in law, seemingly on the basis that she could speak English and because Japan had made a sizeable contribution to the ICC budget that year. She was typical of many ICC judges, similarly without legal qualifications or any courtroom experience whatsoever, manifestly out of their depth in every sense, going through the pretence of judging what are incredibly complex issues of law inherent in alleged crimes against humanity, war crimes and genocide. The result of this back-scratching has been a corrupted and dysfunctional two-billion dollar court, procedural fiascos, institutional cover-ups and repeated miscarriages of justice.

The practice of vote-trading at the ICC has fatally undermined the Court. It has resulted in incompetent judges and sub-prime justice. It has also highlighted the political manipulation of a key judicial process within an already politicised body. The resultant pseudo-judicial bumbling by the judges and Court has served to prolong civil wars, entrench impunity and grant immunity to offenders. In so doing it has also had the added effect of irremediably damaging the practical case for any such international court and begs the question: Why should anyone be expected to appear before this mockery of a court?