Art. 86. (1) Save as provided otherwise by this law, judges are appointed pursuant to the proposal of
the Federal Government by the Federal President or, by reason of his authorization, by the competent
Federal Minister; the Federal Government or the Federal Minister shall obtain proposals for appointment
from the chambers competent through the law on the organization of the courts.
(2) If a sufficient number of candidates is available, the proposal for appointment to be submitted to the
competent Federal Minister and to be forwarded by him to the Federal Government shall comprise at
least three names, but if there is more than one vacancy to be filled at least twice as many names as there are judges to be appointed.
Art. 87. (1) Judges are independent in the exercise of their judicial office.
(2) A judge is in the exercise of his judicial office during the performance of any judicial function properly
his by law and the allocation of business, though to the exclusion of the judiciary's administrative
business which in accordance with the provisions of the law shall not be discharged by chambers or
commissions.
(3) Business shall be allocated in advance among the judges of a court for the period provided by the
law on the organization of the courts. A matter devolving upon a judge in accordance with this allocation
may be removed from his jurisdiction by decree of the judiciary's administrative authorities only in case
of his being prevented from the discharge of his responsibilities or his being unable to cope with his duties, due to their extent, within a reasonable time.
Art. 87a. (1) The performance of certain kinds of business, which shall be exactly specified and fall within the jurisdiction of a court of First instance, can by Federal law be assigned to specially trained personnel of the Federation who are not judges.
(2) The judge competent in accordance with the allocation of business can however at any time reserve to himself or take over the discharge of such business.
(3) The personnel of the Federation which is not a judge is bound in the performance of business
specified in para 1 above only by instructions from the judge competent in accordance with the
allocation of business. Art. 20 para 1 third sentence shall apply.
Art. 88. (1) A Federal law will determine an age limit upon whose
attainment judges will permanently retire.
(2) Otherwise judges may be removed from office or transferred against their will or superannuated only
in the cases and ways prescribed by law and by reason of a formal judicial decision. These provisions
do not however apply to transfers and retirements which become necessary through changes in the
organization of the courts. In such a case the law will lay down within what period judges can without
the formalities otherwise prescribed be transferred and superannuated.
(3) The temporary suspension of judges from office may take place only by decree of the president of the court or the higher judicial authority together with simultaneous reference of the matter to the competent court.
Art. 88a. The law on the organization of the courts may provide for posts of substitute judges
assigned to a higher court. The number of such posts may not exceed three per cent of the number of
judge posts assigned to the subordinate courts. The duties of the substitute judges in charge at
subordinate courts shall in accordance with the law on the organizations of the courts be determined by
the competent chamber of the higher court. Substitute judges may be entrusted only with the
substitution of judges of subordinated courts and only if these judges are prevented from the discharge
of their responsibilities or are unable to cope with their duties, due to the extent of these, within a reasonable time.
1. Subject to the provisions of paragraph 2, there shall be 18 judges of the Court.
2.
(a) The Presidency, acting on behalf of the Court, may propose an increase in the number of judges specified in paragraph 1, indicating the reasons why this is considered necessary and appropriate. The Registrar shall promptly circulate any such proposal to all States Parties.
(b) Any such proposal shall then be considered at a meeting of the Assembly of States Parties to be convened in accordance with article 112. The proposal shall be considered adopted if approved at the meeting by a vote of two thirds of the members of the Assembly of States Parties and shall enter into force at such time as decided by the Assembly of States Parties.
(c)
(i) Once a proposal for an increase in the number of judges has been adopted under subparagraph (b), the election of the additional judges shall take place at the next session of the Assembly of States Parties in accordance with paragraphs 3 to 8, and article 37, paragraph 2;
(ii) Once a proposal for an increase in the number of judges has been adopted and brought into effect under subparagraphs (b) and (c) (i), it shall be open to the Presidency at any time thereafter, if the workload of the Court justifies it, to propose a reduction in the number of judges, provided that the number of judges shall not be reduced below that specified in paragraph 1. The proposal shall be dealt with in accordance with the procedure laid down in subparagraphs (a) and (b). In the event that the proposal is adopted, the number of judges shall be progressively decreased as the terms of office of serving judges expire, until the necessary number has been reached.
3.
(a) The judges shall be chosen from among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective States for appointment to the highest judicial offices.
(b) Every candidate for election to the Court shall:
(i) Have 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; or
(ii) Have 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;
(c) Every candidate for election to the Court shall have an excellent knowledge of and be fluent in at least one of the working languages of the Court.
4.
Nominations shall be accompanied by a statement in the necessary detail specifying how the candidate fulfils the requirements of paragraph 3.
(a) Nominations of candidates for election to the Court may be made by any State Party to this Statute, and shall be made either:
(i) By the procedure for the nomination of candidates for appointment to the highest judicial offices in the State in question; or
(ii) By the procedure provided for the nomination of candidates for the International Court of Justice in the Statute of that Court.
(b) Each State Party may put forward one candidate for any given election who need not necessarily be a national of that State Party but shall in any case be a national of a State Party.
(c) The Assembly of States Parties may decide to establish, if appropriate, an Advisory Committee on nominations. In that event, the Committee's composition and mandate shall be established by the Assembly of States Parties.
5. For the purposes of the election, there shall be two lists of candidates: List A containing the names of candidates with the qualifications specified in paragraph 3 (b) (i); and List B containing the names of candidates with the qualifications specified in paragraph 3 (b) (ii). A candidate with sufficient qualifications for both lists may choose on which list to appear. At the first election to the Court, at least nine judges shall be elected from list A and at least five judges from list B. Subsequent elections shall be so organized as to maintain the equivalent proportion on the Court of judges qualified on the two lists.
6.
(a) The judges shall be elected by secret ballot at a meeting of the Assembly of States Parties convened for that purpose under article 112. Subject to paragraph 7, the persons elected to the Court shall be the 18 candidates who obtain the highest number of votes and a two-thirds majority of the States Parties present and voting.
(b) In the event that a sufficient number of judges is not elected on the first ballot, successive ballots shall be held in accordance with the procedures laid down in subparagraph (a) until the remaining places have been filled.
7. No two judges may be nationals of the same State. A person who, for the purposes of membership of the Court, could be regarded as a national of more than one State shall be deemed to be a national of the State in which that person ordinarily exercises civil and political rights.
8.
(a) The 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.
(b) States Parties shall 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.
9.
(a) Subject to subparagraph (b), judges shall hold office for a term of nine years and, subject to subparagraph (c) and to article 37, paragraph 2, shall not be eligible for re-election.
(b) At the first election, one third of the judges elected shall be selected by lot to serve for a term of three years; one third of the judges elected shall be selected by lot to serve for a term of six years; and the remainder shall serve for a term of nine years.
(c) A judge who is selected to serve for a term of three years under subparagraph (b) shall be eligible for re-election for a full term.
10. Notwithstanding paragraph 9, a judge assigned to a Trial or Appeals Chamber in accordance with article 39 shall continue in office to complete any trial or appeal the hearing of which has already commenced before that Chamber.