In a report published on September 30, 2020, the Independent Expert Review (IER) raised their concern “about the possible lack of experience, knowledge and interest in international criminal law of some judges”. The same day, the Advisory Committee on the Nomination of Judges (ACN) also released its report, evaluating the suitability of the nominees for the position. A few days later, candidates’ answers to a questionnaire prepared by States Parties were shared. In analysing those different documents, we noticed that several judicial nominees generally lacked experience and/or understanding of what sexual and gender-based crime (SGBC) entailed.
We therefore welcome the IER’s recommendation R174 that the “Presidency should design and organise a compulsory, intensive and comprehensive Induction Programme of sufficient duration for new Judges” that would be tailored to each judge and cover SGBC. The same holds true for the Continuing Professional Development Programme, also proposed in the report. It is now for the Assembly of States Parties (ASP) to make these written recommendations a concrete reality that will be beneficial not only for the Court, but also first and foremost for SGBC victims and affected communities.
This post explains the reasons why we need to have a Bench that has experience in and knowledge of SGBC. It supports the call for mandatory training of judges on this subject.
1. The Imperative: Rights of the victims and Quality of the decisions
The Rome Statute is a progressive instrument offering the necessary tools to put an end to the impunity of SGBC. What we now need are judges who know how to use this tool effectively.
However, this year’s list of candidates speaks for itself: out of the twenty candidates, twelve claimed to have experience handling SGBC cases. From those twelve, five seemed to understand SGBC from the limited prism of domestic violence against women and/or children, or that sexual violence occurs against women; their answers utterly failed to explicitly acknowledge that men and boys could also be victims of SGBC. Only four candidates demonstrated experience in dealing with gender-based violence.
This is problematic. Judges should hold a basic knowledge of SGBC for, at least, two reasons: to uphold victims’ rights and maintain the quality of the decisions.
The Rome Statute is unequivocal: victims should be put at the centre of ICC proceedings. However, when victims of SGBC face a Bench that has no prior experience or knowledge of SGBC, their right to participate is affected. First, judges play an essential role in ensuring that victims do not suffer from secondary victimisation during the proceedings. Second, as shown in the ICC’s first reparation case (Lubanga), a Bench that lacks a gender perspective and understanding of SGBC is more at risk of making reparation orders that will fail to be effective for and inclusive of SGBC victims.
The lack of knowledge regarding SGBC may also undermine the legitimacy of the Court and the quality of its rulings. The ICC has already been criticised for its decisions that lacked a sensitisation to SGBC (see here and here). While the onus for including SGBC in criminal charges is on the Office of the Prosecutor (OTP), a Bench that does not have a knowledge of SGBC or is tainted by stereotypes will certainly not contribute to the successful prosecution of these crimes. This affects the entire proceedings, from the confirmation of the charges (see Bemba, Katanga and Ngudjolo cases where charges of SGBC were not confirmed due to the judges’ misunderstanding) to the sentencing (see Judge Odio Benito dissenting opinion on her colleagues’ failure to consider sexual violence).
2. The solution: Providing mandatory training for judges on SGBC
The candidates’ lack of knowledge and expertise related to SGBC is deeply problematic considering that, if elected, they are likely to rule over cases of SGBC during their nine-year mandate. In its 2019 report on preliminary examination activities, out of the nine situations that were under examination by the OTP, eight were situations where the OTP had a reasonable basis to believe SGBC had been committed.
We support the call for mandatory judicial training on SGBC at the ICC. Its importance cannot be overstated. The International Organisation for Judicial Training emphasised that judicial training is “essential to ensure high standards of competence and performance”. Even the ICC Code of Judicial Ethics calls on judges to take “reasonable steps to maintain and enhance the knowledge, skills and personal qualities necessary for judicial office”. And, although mandatory training was not a topic addressed by the ACN, it still formed part of the many issues addressed by the IER report (see para.417 of the report).
As explained by the Justice Initiative in June 2020, “the ICC presents a new, unfamiliar legal framework for most incoming judges”. The IER also reported that the ICC “has many distinctive features not repeated elsewhere”. Newly elected judges may not be familiar with the Rome Statute system, as it is one of a kind—the possibility to adjudicate gender-based crimes being an example of its peculiarity.
The Paris Declaration of 2017 advocates for the training of international judges. In several countries (e.g., Canada, the US, Malawi and the UK), judicial trainings are attended by judges. Belgium’s awareness of the lack of its judiciary’s knowledge on sexual violence even led to the adoption of a law making it mandatory for judges to partake in training on sexual violence. The ICC must follow this practice and organise mandatory trainings on SGBC for its judiciary.
We understand that some judges may be resistant to the idea of receiving judicial training. Some of them might “find continuing professional development an anathema to the standing of a judge of an international criminal court” as noted by the IER. However, in an era where SGBC is a clear component of armed conflicts, the poor record of successful prosecution of SGBC before the ICC is no longer acceptable—especially when part of the solution could come simply from a better understanding from the Bench. This is a fair and necessary requirement for those who want to serve on the criminal court that the whole world has its eye on (for better or worse).