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Keep Politics Out of the Global Courts:

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International Judges Must Be Independent and Representative

By Cherie Booth and Philippe Sands*


The Guardian
July 13, 2001

The extradition of Slobodan Milosevic to the Yugoslav War Crimes Tribunal in the Hague has thrown the growing importance of international courts into sharp relief. Some 210 international judges now sit on more than 20 international judicial bodies and act as final arbiters on everything from the death penalty and responsibility for genocide, to the rights of gays in the armed forces, paid leave for part-time workers and restrictions on the use of genetically modified organisms.


But there is very little public awareness about these bodies, and almost as little accountability to the public. Still less is known about who the judges are, where they come from, how they are appointed and the basis upon which they approach international justice. With no international police force to back them up, the authority of international courts depends largely on their perceived legitimacy, a point which Slobodan Milosevic raised at his initial hearing. And to a great extent, the legitimacy of international courts is based on their composition.

The identity of the judges who sit on international courts is a subject with a long and difficult history. The first effort to establish a permanent international court - at the Hague Peace Conference of 1899 - foundered because states could not agree on how to create a court with a representative number of judges. Each state wanted its own judge, but recognised that a bench of 50 or more judges would be unworkable. Over time states accepted that the bench should be geographically representative. The Statute of the International Court of Justice provides that the judges should be representative of "the main forms of civilisation and of the principal legal systems of the world".

Equally important, the selection process must ensure that the international judiciary is independent and of the highest calibre. Unfortunately, this is not always the case. Though many members of the international judiciary are excellent, the selection of international judges is often a highly politicised affair, with some of the most independent and qualified candidates being passed over by the electing bodies, usually comprised of states. Once elected, there is the potential problem that some judges may find it difficult not to be loyal to their own states. Regrettably, in many states, nominations are handed out to reward political loyalty rather than legal excellence. And there seems to be no reason, if there is to be an independent international judiciary, to maintain the convention of guaranteeing judicial positions to nationals of particular countries.The five permanent members of the UN Security Council are, for example, guaranteed seats at the International Court of Justice.

The international judiciary is also overwhelmingly male, suggesting that the selection process operates within unacceptable limits. A study prepared by Jan Linehan for the Project on International Courts and Tribunals shows that of 153 judges attached to the nine principal international courts, just 18 are women. At the recent elections at the UN for the 14 judges of International Criminal Tribunal for the former Yugoslavia, just one female judge was elected, by the narrowest of margins. This is partly because women are under-represented as judges in most national legal systems (including England and Wales) as well as under-represented in international law and international institutions generally.

But it is not credible to suggest that under-representation is due solely to a lack of suitably qualified candidates. Other factors include the lack of priority that states attach to the issue, persistent ideas about the nature of suitable candidates and systemic barriers or disincentives for women. Many states persist in promoting a particular type of candidate - one with a background in academia, diplomacy and the International Law Commission - to which women are less likely to conform. Some states also persist in seeing women as candidates only for women's rights and human rights bodies.

The under-representation of women as judges threatens to undermine the legitimacy and authority of international courts. A court without women, or with an insufficient number of them, cannot be representative of the "main forms of civilisation". Equally, only a court composed of judges of the highest calibre and fiercest independence can maintain the authority needed to dispense international justice. As the international judicial systems grows and continues to be involved in increasingly important issues, it is crucial that international justice is seen to be fair and representative of international society as a whole. To achieve this there is a pressing need for broader interest and involvement in the selection of international judges.

*Cherie Booth QC is a barrister at Matrix Chambers. Philippe Sands is Professor of International Law at the University of London and a barrister at Matrix Chambers. The Jan Linehan study is available at www.pict-pcti.org.


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