The Open Society Justice Initiative recently released an excellent report on the selection of judges at the International Criminal Court (“Raising the Bar”). It is a detailed and thoughtful report combining often eye-opening interviews and desk scholarship. It makes a number of very important recommendations about improving the process by which ICC judges are nominated and elected. In this post, however, I wish to take issue with one of the report’s key recommendations. It is only one recommendation, but it is an idea which is increasingly frequently put forward in various fora as a sine qua non of effective International Criminal Court reform.
This is the suggestion that the only criterion for appointment to the ICC judiciary should be excellence in the practice of criminal law. Thus, the suggestion goes, the statutory provision that judges may be elected either on the basis of expertise in criminal law and practice (the “List A” judges) or expertise in relevant areas of international law and practice (the “List B” judges) should be abolished.
The Open Society Justice Initiative report certainly lends significant credence to the view that the List B route to the ICC bench has on occasion been used to appoint lawyers who have spent their career as diplomats and not prosecutors, defenders, judges, or scholar-practitioners.
However, the idea that a significant number of the Court’s woes would be corrected if only it were properly staffed with solid criminal law judges is, I think, overstated. Let’s briefly consider a few of the decisions of the Court which have been most maligned in recent commentary.
- The Afghanistan Decision of Pre-Trial Chamber II was taken unanimously by Judges Antoine Kesia-Mbe Mindua (List B), Judge Tomoko Akane (List A) and Judge Rosario Salvatore Aitala (List A).
- The majority in the Appeals Chamber which acquitted in Bemba was composed of Judges Chile Eboe-Osuji (List A), Christine Van den Wyngaert (List A) and Howard Morrison (List A). A dissent was entered by Judges Sanji Mmasenono Monageng (List B) and Piotr Hofmański (List A).
- Darryl Robinson has made some important and trenchant criticisms of the evidentiary standards applied in Gbagbo and Blé Goudé. The Trial Chamber majority, however, in that case was Judges Cuno Tarfusser and Geoffrey Henderson, both elected as List A judges. The dissent was from another List A judge: Judge Olga Herrera-Carbuccia.
- The Appeals Chamber which ruled on President Al Bashir’s immunity in Jordan consisted of Judge Eboe-Osuji (List A), Judge Morrison (List A), Judge Hofmański (List A), Judge Bossa (List A) and Judge Ibañez (List A).
On this, admittedly narrow, sample the picture is not one of international law judges getting in the way of “good” criminal proceedings or outcomes (in the eyes of the commentators, at least).
Interviewees for the report do acknowledge that – unsurprisingly – genuine questions of international law fall for resolution before the Court. The answer appears to be, however, that this is not a particular concern. The report states that one interviewed judge noted:
when questions of international law arise, judges do not generally consult List B colleagues. Other options available to judges include requesting amicus curiae briefs or assigning research to support staff …
This, sadly, rings true. It also shows the regrettable chauvinism of most lawyers, who tend to regard the area of law in which they are expert as genuinely difficult while seeing other areas of legal enquiry as rules simply to be looked up. (Indeed, the psychological tendency of most human beings to underestimate the complexity of domains of knowledge with which they are unfamiliar is sufficiently well known to have its own name: the Dunning Kruger effect.) It is notable that the report and its interviewees do not suggest that to the extent that there is any weakness in having international law specialists dealing with criminal law issues, that this could be resolved by having someone look up the legal or procedural questions for them.
The Court has, even in the course of its “ordinary” criminal law caseload, had to make significant determinations about the law of armed conflict and international humanitarian law with systemic and law-making consequences. I would respectfully submit that these are not questions that should be entrusted solely to well-intentioned practitioners from adjacent fields of legal enquiry.
Further, on one of the more pressing issues of general public international law at the moment – the immunity of heads of state and government when accused of international crimes – an Appeals Chamber composed exclusively of List A judges has managed to deliver a ruling with which the majority of serious scholars disagree, and which at best commands minority approval for the outcome though not the reasoning. (See, for example, the assessment in the new edition of the authoritative Cryer, Robinson and Vasiliev, Introduction to International Criminal Law and Procedure, pp. 529-30.)
Looking to the future, certainly the criminal law practitioner credentials of those on the bench should be substantially strengthened. Running a complex criminal trial is, as is often observed, largely a question of expertise in the law of procedure and evidence. However, we must also resist the siren call of seeing the court as “just” a criminal court or excessively valorising List A.
In my view, in an ideal world judges at the trial and pre-trial chamber level would be criminal law specialists with in addition and in every case demonstrated competence in international law. There would then be a separately elected Appeals Chamber including a healthy representation of international law specialists, though not necessarily a majority. (Again, purely hypothetically, one model might be to have a standing Appeals Chamber of three judges with at least two international law specialists, and then in any given appeal appoint a further two judges from trial chamber level to sit.)
More pragmatically, there is something to be said for the Report’s interim recommendation that no more than the required minimum of judges should be appointed from List B in future elections. However, I think the better midterm strategy would be to move to a position where “List A” is interpreted to mean criminal law practitioners with (in every case) demonstrated competence in international law, and “List B” is interpreted to mean international law specialists with (again, in every case) demonstrated competence either in criminal law or judicial experience more generally.
In any event, anyone interested in International Criminal Court reform should read this important and timely report. But I think we should all be a little hesitant in arriving at the conclusion that a significant weakness in the Court would be resolved if List B judges were abolished. The observation that some judges have been appointed to the Court’s bench who were poorly qualified for the role is difficult to disagree with as a proposition of fact; the conclusion that situation would be substantially rectified by the abolition of List B is, however, to conflate a number of issues. Certainly, the practice of appointing career diplomats as judges to the court should stop, but that is a separate question.