International judges are required to decide upon an increasingly wide range of issues of global importance, yet very few people know how these powerful decision-makers are selected.

By Kate Malleson

Our three-year judicial selection project was an attempt to shed some light on the subject (Mackenzie, Malleson, Martin and Sands, Selecting International Judges: Principle, Process and Politics, Oxford University Press, 2010).

Based on interviews and case studies, our findings confirm that although the integrity and ability of the judges are not generally in issue, there are real dangers that political influence can have a distorting effect on the goal of selecting the most meritorious and independent candidates.

Inconsistent
Focusing on the selection of judges to the International Court of Justice (ICJ) and International Criminal Court (ICC) our research shows that the nomination process by which states put up candidates for election is critical in determining the quality of judges selected.

Yet in the absence of detailed guidance on the process in the provisions of the ICJ and ICC Statutes states have been left to establish their own practices. The result is considerable inconsistency in the nature and quality of the ways in which judges are nominated.

Some states use formal, transparent and merit-based systems, others rely on informal personal recommendations; prioritising the views of the friends and contacts of members of the government.

Politicized
The more informal the process, the more politicized it is. Most states use processes which are both very informal and highly politicised.

Numerous examples of political favouritism or nepotism were reported to us. Often there is no identified ‘selection pool’, only a single candidate who is known to the decision-makers, and who may initiate and lobby for nomination.

The ICJ and ICC nomination rules are meant to insulate nominations from political influence. However, in practice, many governments have a strong vested interest in strictly controlling the nomination process in order to influence the composition of international courts.

By contrast, a small number of states have developed procedures that place far greater emphasis on merit and transparency.

These include strengthening the independence of the Permanent Court of Arbitration national groups which nominate candidates, the use of independent expert selection committees and open selection procedures such as public advertisements, peer review, consultation and interviews.

Cattle market
In the elections themselves the degree of politicization is, if anything, even greater. One interviewee described it as ‘a cattle market sort of process.’

The central mechanism for securing support for a candidate is the ‘mutual support’, reciprocal, or vote-trading arrangement by which State A will secure a vote from State B for its candidate in return for a promise to vote for a candidate fielded by State B.

One consequence of the politicization of the process is that more powerful countries and regions dominate with the P5 and western states over-represented. In contrast, women are still dramatically under-represented in all international courts except those which have formal rules that require a degree of gender balance.

Although our findings indicate that merit is often a secondary factor in the selection processes, this does not mean that successful candidates necessarily lack quality. But merit is not the priority.

As one candidate put it to us: ‘I don’t think I lost because I am bad and, had I won, it would not have been because I am good.’

In practice, states will not contemplate giving up control over judicial elections; nor, arguably, should powerful decision-makers be selected through processes which are wholly disconnected from elected governments.

Nevertheless, urgent steps need to be taken to limit the growing and pervasive role of extraneous political factors, particularly at the nomination stage, in order to ensure that politics does not overwhelm the prospects for selecting the very best judges for the international courts.

Kate Malleson is Professor of Law at Queen Mary, University of London. She is a member of the governing council of JUSTICE and recently set up the Equal Justices Initiative to monitor developments in judicial appointments.

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