Several UK-based legal scholars have just published an important new book, Selecting International Judges, that takes a hard look at how international judges are chosen. They examine the International Criminal Court and the International Court of Justice, and the results are devastating.
For the most part, they find that judges are selected through a combination of cronyism at the national level and horse-trading at the international level. I spoke today with Philippe Sands, one of the book's authors. He's an experienced international litigator who frequently appears before international courts. He's long had the feeling that the insular world of international judgeships needed scrutiny. The problem was that most of those with the knowledge and access to carry it out were deeply invested in that world. "Those who know about it are part of the system," he says.
Built on more than a hundred interviews with judges and diplomats, the book exposes a deeply problematic system. Very few countries have rigorous or competitive processes for selecting the candidates they put forward for international judgeships. Often, Sands says, those nominated are "friends of friends or friends of politicians." In other cases, diplomats rather than lawyers are put forward. In one particularly egregious case, the Japanese government nominated a candidate with no formal legal training or background in criminal law for an ICC judgeship. Once countries have nominated candidates, their final selection often becomes the subject of traditional horse-trading between states that has little or nothing to do with relative qualifications.
The ICJ and the ICC, in particular, are institutions that rule on critical matters involving human rights and international security. The ICJ's recent decision on Kosovo had major political and security implications. And as Sands says, "the ICC is a court that can put people behind bars for the rest of their lives." It's well past time to reform the way these judges are selected.
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David Bosco reports on the new world order for The Multilateralist.