An ordinary election for six judges of the International Criminal Court was held during the resumption of the 7th session of the Assembly of States Parties to the Rome Statute of the International Criminal Court in New York on 19 and 20 January 2009.
The election was to fill six seats for which the original judges had been elected to six-year terms in the initial election in 2003. The newly elected judges were to serve nine-year terms.
Background The judges elected in this election were to take office on 11 March 2009, and to remain in office until 10 March 2018.
The election was governed by the Rome Statute of the International Criminal Court. Its article 36(8)(a) states that "[t]he States Parties shall, in the selection of judges, take into account the need, within the membership of the Court, for: (i) The representation of the principal legal systems of the world; (ii) Equitable geographical representation; and (iii) A fair representation of female and male judges."
Furthermore, article 36(3)(b) and 36(5) provide for two lists: List A contains those judges that "[h]ave established competence in criminal law and procedure, and the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings"; List B contains those who "[h]ave established competence in relevant areas of international law such as international humanitarian law and the law of human rights, and extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court".
Each candidate must belong to exactly one list.
Further rules of election were adopted by a resolution of the Assembly of States Parties in 2004.
Judges remaining in office The following judges were scheduled to remain in office beyond 2009:
JudgeNationality List A or B Regional criteria Gender List A List B African Asian E. European GRULAC WEOG Female Male Bruno Cotte X X X Adrian Fulford X X X Hans-Peter Kaul X X X Erkki Kourula X X X Fatoumata Dembélé Diarra X X X Akua Kuenyehia X X X Daniel David Ntanda Nsereko X X X Elizabeth Odio Benito X X X Sylvia Helena de Figueiredo Steiner X X X Sang-hyun Song X X X Ekaterina Trendafilova X X X Anita Ušacka X X X 8 4 3 1 2 2 4 6 6
Nomination process The nomination period of judges for the 2009 election was scheduled to last from 21 July to 13 October 2008. It was extended three times, to 27 October, 10 November and 24 November 2008, because the minimum nomination requirements of two candidates each from the Asian States and the Latin American and Caribbean States had not been met. The following persons were nominated:
NameNationality List A or B Regional criteria Gender List A List B African Asian E. European GRULAC WEOG Female Male Victoire Désirée Adétoro Agbanrin-Elisha X X X Joyce Aluoch X X X Phani Dascalopoulou-Livada X X X Christopher John Robert Dugard X X X Chile Eboe-Osuji X X X María del Carmen González Cabal X X X X X X Sanji Mmasenono Monageng X X X X X X X X X Fumiko Saiga X X X Mohamed Shahabuddeen X X X Angélique Sita-Akele Muila X X X El Hadji Malick Sow X X X Cuno Tarfusser X X X X X X Rosolu John Bankole Thompson X X X Christine van den Wyngaert X X X Dragomir Vukoje X X X 11 8 11 1 1 2 4 11 8
The candidatures of of Colombia and of Lombe Chibesakunda of Zambia were withdrawn on 13 and 16 January 2009, respectively.
The candidature of Onesmus Mutungi of Kenya was replaced by the candidature of Joyce Aluoch on 13 October 2008.
Chile Eboe-Osuji of Nigeria was transferred from List B to List A on 10 November 2008.
Minimum voting requirements Minimum voting requirements governed part of the election. This was to ensure that article 36(8)(a) cited above is fulfilled. For this election, the following initial minimum voting requirements applied.
Regarding the List A or B requirement, there was a minimum voting requirement (not to be waived) of one judge from List A and one judge from List B.
Regarding the regional criteria, there was a voting requirement for one judge from the Asian States and one judge from the Latin American and Caribbean States.
Regarding the gender criteria, there was no minimum voting requirement.
The regional and gender criteria are adjusted even before the election depending on the number of candidates. Paragraph 20(b) of the 2004 resolution states that if there are fewer than double the number of candidates required for each region, the minimum voting requirement shall be half the number of candidates, rounded up; except when there is only one candidate, which results in no voting requirement. Furthermore, if the number of candidates of one gender is less than ten, then the minimum voting requirement shall not exceed a certain number depending on the number of candidates.
The regional and gender criteria are dropped either if they can on longer be (jointly) fulfilled, or if after four ballots not all seats have been filled.
The voting requirements were as follows:
Criterion Number of judges required Number of judges remaining in office Ex ante voting requirement Candidates Adjusted voting requirement Adjusted requirement equals ex ante?Lists A or B List A 9 8 1 11 1 List B 5 4 1 8 1 Regional criteria African states 3 3 0 11 0 Asian states 2 1 1 1 0 Eastern European states 2 2 0 1 0 Latin American and Caribbean States 3 2 1 2 1 Western European and other States 3 4 0 4 0 Gender criteria Female 6 6 0 11 0 Male 6 6 0 8 0
Because Fumiko Saiga was the only Asian candidate, the corresponding regional requirement was adjusted to zero. The requirement to vote for one candidate from the Latin American and Caribbean States remained in force, as two candidates from that region remained after the withdrawal of Fernando Enrique Arboleda Ripoll.
Ballots The first two ballots took place on 19 January 2009. All other ballots took place on 20 January 2009. The voting totals were as follows:
Name Nationality List A or B Region Gender 1st round 2nd round 3rd round 4th round 5th round 6th round 7th round 8th round 9th round Number of States Parties voting 108 108 108 107 108 105 108 108 100 Two-thirds majority 72 72 72 72 72 72 72 72 67 Mohamed Shahabuddeen List B Latin American and Caribbean States Male 79 elected Fumiko Saiga List B Asian States Female 72 elected Cuno Tarfusser List A Western European and Other States Male 69 68 74 elected Sanji Mmasenono Monageng List B African States Female 41 50 64 75 elected Christine van den Wyngaert List A Western European and Other States Female 58 58 61 67 73 elected Joyce Aluoch List A African States Female 30 32 39 36 38 48 55 62 100 List A Western European and Other States Female 59 62 62 60 65 56 53 46 withdrawn Phani Dascalopoulou-Livada List B Western European and Other States Female 48 43 31 28 14 withdrawn Christopher John Robert Dugard List B African States Male 30 27 25 20 14 withdrawn María del Carmen González Cabal List B Latin American and Caribbean States Female 31 18 18 14 withdrawn Chile Eboe-Osuji List A African States Male 24 16 12 withdrawn List A African States Female 10 6 12 withdrawn List A African States Male 14 9 withdrawn Angélique Sita-Akele Muila List B African States Female 11 4 withdrawn El Hadji Malick Sow List A African States Male 10 4 withdrawn Dragomir Vukoje List A Eastern European States Male 9 4 withdrawn List B African States Female 5 3 withdrawn Rosolu John Bankole Thompson List A African States Male 9 2 withdrawn Victoire Désirée Adétoro Agbanrin-Elisha List A African States Female 4 withdrawn
The minimum voting requirements are imposed on the ballots cast, not on the results. Thus, there is no guarantee that a corresponding number of judges is elected. However, in this election this was the case:
Criterion Initial minimal voting requirement Corresponding number of judges elected? List A 1 List B 1 Asian 1 Latin American and Caribbean 1
Note that the minimum voting requirement for an Asian candidate had been adjusted to zero before the election and was thus not being imposed when Saiga was elected in the first ballot.
Shahabuddeen subsequently resigned before taking office, while Saiga died on 24 April 2009. Their seats were filled in the November 2009 special election.
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