Who Picks the Judges? On International Tribunals, Secrecy Too Often Prevails

This December, the member countries of the International Criminal Court (ICC) will gather in New York for their annual assembly. Among the issues on the agenda: the election of six new judges to the ICC’s bench in The Hague.

This happens every three years, when a third of the court’s 18 judges are replaced for a nine-year, nonrenewable term. Not much public attention is usually paid to this process. But that doesn’t mean this is something that happens entirely behind closed doors.

Indeed, there is a comparatively high level of transparency about what happens, in line with the terms laid out in the Rome Statute that created the ICC. The statute, for instance, requires that the court’s judges are equitably representative of gender, geographical representation, and legal expertise. A complex minimum voting requirement has even been put in place to try to minimize vote trading for candidates and to ensure that the ICC remains fully representative.

Moreover, in 2011, following concerted civil society pressure, the ICC’s Assembly of States Parties (the member governments) set up an advisory committee, whose task it is to provide objective assessments of the nominated candidates, aided by face-to-face interviews. Of this year’s 12 candidates, the committee found half to be “particularly well qualified.” Such clear assessments, based on a thorough review of the candidates’ backgrounds, should help national governments in the important task of electing the highest qualified officials, based on objective, transparent criteria.

Elsewhere, unfortunately, things are not so well ordered. In other international tribunals, the processes by which judges are nominated and elected to serve remains largely unknown and shrouded in secrecy. A new report by the Open Society Justice Initiative and the International Commission of Jurists shows the extent of the problem.

The 120-page report, Strengthening from Within, examines one subset of these institutions: regional human rights courts and commissions in Europe (the European Court of Human Rights), Africa (the African Commission and Court on Human and Peoples’ Rights), and the Americas (the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights). By analyzing the nomination practices of 22 countries from across these three systems—reflecting a range of geographies, sizes, and political systems—the report documents the ways in which these practices too often fall short of the legal frameworks and international standards that should guide them. It also identifies promising examples and makes recommendations for improvement.

Here are the top five recommendations:

1. Designate an independent body to conduct their own national selection procedure.

In more than half of the states highlighted in the report, judicial candidates appeared to have been nominated as a result of being personally approached by their governments, rather than through a transparent and competitive process.

2. Develop and publish reasoned criteria to ensure that all candidates meet the minimum qualifications to be nominated.

As the report illustrates, many states don’t even perform this basic step.

3. Take affirmative steps to ensure gender parity among national decision-makers in the nominations process—for instance on national nominating bodies or review panels.

The lack of equitable gender representation at the national level surely correlates with the under-representation of women in almost all international bodies, as the GQUAL campaign for gender parity in international representation has illustrated.

4. Engage civil society—NGOs, bar and civic associations, academic institutions—to help ensure that calls for applications are widely circulated and that the nominations process itself is well publicized.

Such constructive consultation does not take place nearly enough. 

5. Within each regional human rights system, establish an independent advisory committee/group of experts to evaluate the suitability of nominated candidates for office, to assess the national selection procedure undertaken, and to reject where necessary candidates who are unqualified or unsuitable for service.

Why does this matter? Because an independent judiciary is essential to the rule of law. For national courts, procedures for judicial selection must be fair, transparent, and merit-based. As this report makes clear, the world’s international courts and tribunals are no different. At a time when international judicial institutions—and the rule of law itself—are increasingly under attack, this is a vitally important issue.