Today's Guardian has an interesting article on the selection of international judges. The Rome Statute makes very elaborate provision for the selection of judges but ultimately the process is at the mercy of the States Parties who nominate them. At the European Court of Human Rights, States must nominate three judges, who are then interviewed and a candidate is chosen by the Parliamentary Assembly. Andrew Drzemczewski recently sent me an article he has published on the subject.
I was never so troubled about the fact that the first Japanese judge didn't have a law degree. She had many years of experience in the field of human rights law. The fact that she had not taken courses in tax law and divorce law didn't seem to me to be an obstacle to being a good judge. Many people with law degrees have never studied public international law, or international criminal law, or international humanitarian law. Is a law degree such an important qualification?
The Rome Statute provides for two categories of judges, those with criminal trial experience and those with and international law background. I think that it exaggerates the importance of international law in the work of international criminal judges. If all of the judgments of all of the international criminal tribunals is put together, we end up with many rather perfunctory references to article 31 of the Vienna Convention on the Law of Treaties and not much more. The word on the street is that this was injected in the Statute in order to provide an entry point for diplomats. Yet some diplomats have been find judges at the Court.
The danger is that in over-regulating the selection process we will exclude very fine people who will make very fine judges. We will develop career profiles that are believed to identify ideal judges, and dismiss the candidacies of others who do not have these. I doubt that is a good idea.
Actually, the more mysterious process is the appointment of the Prosecutor of the International Criminal Court. The first Prosecutor was elected by acclamation, as he was the only candidate. There had been back-room negotiations and he was the result. The same process looks likely with respect to the next Prosecutor, who must be chosen by early 2012. Not only is the process opaque, we do not have any agreement on the qualifications of the ideal prosecutor. I'm struck by the fact that among the best prosecutors at the international level - I'm thinking of Richard Goldstone, Louise Arbour, and Robert Jackson - we have people who were judges without significant prosecutorial experience. Perhaps we should be looking for the next Prosecutor on the bench, maybe among judges as the International Criminal Tribunal for the former Yugoslavia or one of the other tribunals.