The legal framework of the International Criminal Court (ICC) provides for several criteria designed to ensure a level of diversity on the Court’s bench. The drafters of the Court’s legal instruments did not provide for these criteria ex nihilo, they built on previous long-standing practices of international courts and tribunals, such as the International Court of Justice. Reflecting on the diversity of the ICC’s bench raises the question of whether additional criteria could be imposed to strengthen the existing framework. The article explores whether ethnicity and religion may fall in that category, by revisiting the existing rules and questioning the implications of adding these concepts as criteria to reinforce diversity on the ICC’s bench. Even though a deeper understanding of the ethnic and religious dimensions of a conflict could potentially improve judicial decision-making, this article concludes that ethnicity and religion should not form part of the appointment criteria for the judges of the Court.
The article is published in Identity and Diversity on the International Bench, Oxford University Press, December 2020.