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Home EJIL Analysis Of Babies, Bathwater, and List B Judges at the International Criminal Court

Of Babies, Bathwater, and List B Judges at the International Criminal Court

Published on November 13, 2019        Author: 
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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.

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5 Responses

  1. Kevin Jon Heller

    Excellent post, and I basically agree. If it were administrable, though, I think the best arrangement would be only List A judges in the PTC and TC and a mix of List A and List B in the AC. Even if I’m disappointed from time to time (often?) in List A judges regarding pre-trial and trial issues, I still think they generally perform better than List B judges — and their decisions are far more credible because of their actual criminal-law experience.

  2. Douglas Guilfoyle

    Yup. I think we are in thoroughly boring agreement on this.

  3. Roger O'Keefe

    Bravo, Doug. In particular, I am very glad to see someone suggesting separate election of an Appeals Chamber featuring an adequate representation of judges with a proven record in general public international law. Experience in running trials makes sense for the Trial Chambers, but such expertise needs to be supplemented at the top by expertise in public international law.

  4. Nienke Grossman

    On another issue related to ICC elections, despite the article 36 mandate requiring a fair representation of both male and female judges, the percentage of women on the ICC bench has declined precipitously. While the ICC used to have over 60% female judges, it currently has 30%, the bare minimum allowed by the minimum voting requirements. While this is higher than the percentage of women on the vast majority of international court benches, it is worth asking whether the minimum voting requirements on gender may be turning into a ceiling, rather than a floor, for women’s participation on the bench. The same concerns have also been raised with respect to the requirements on gender in the European Court of Human Rights. Given all of the excellent women working in international human rights and international criminal law, this cannot be attributable to a lack of qualified female candidates. For additional arguments on why we cannot attribute the low percentage of women on international court benches to a lack of qualifications, please see my note, “Achieving Sex Representative International Court Benches,” in the American Journal of International Law (January 2016).

  5. Legal Officer

    The principal problem with judges at the ICC, and most if not all other international tribunals, is not one of knowledge or area of specialisation, but of competence and professionalism. A good judge should have the work ethic and professionalism to want to learn about topics less familiar to her, rather than be dismissive of the possible complexities and nuances. We cannot expect judges to know everything; that is, after all, why expert evidence is adduced in a case. If judges are expected to learn about factual and technical issues during a trial and rule on them, surely it is not so unreasonable to also expect them to invest their time and energy in learning about an area of law with which they might be less familiar. A professional and competent judge should have the humility and critical ability not to fall victim to the Dunning Krueger effect.

    There are a number of reasons, I think, for judges lacking in competence and professionalism in international courts. First, the selection system domestically and internationally is not nearly rigourous enough, as this Open Society report rightly points out. Governments do not take these appointments as seriously as they should. Anecdotal stories abound of difficult personalities being appointed by their governments as a convenient way of “getting rid” of them. This is in addition to the nepotism that takes place (ie knowing the right person). In terms of competitive recruitment process, it is also worth asking how challenging the interview process is compared to the process for recruiting legal staff (who often have to undergo a written exam, followed by a technical and competency-based interview in a rigid UN-established recruitment framework).

    The second reason for low-quality benches is because judges at international tribunals are supported by teams of lawyers, who, let’s be honest, often do the bulk of decision drafting. This makes the judges incredibly complacent and reliant on support staff for ideas, research, groundwork, and really, the final product, too often doing not much more than reading a draft and then placing their signature at the bottom. It is worth asking what it is about international criminal jurisdictions that creates this excessive reliance on support staff. Consider, in contrast, the example of judges at the highest courts of many countries who often also benefit from the support of legal clerks, but nevertheless still draft their decisions themselves.

    This complacency is perpetuated by a much broader problem: the fact that there is zero accountability for international judges. They are immune from pretty much everyone and everything. Harassment goes unpunished, laziness is rewarded, and a blind eye is turned to questionably behavior. All because there is no strong ethical framework and oversight body to hold misbehaving, unethical or incompetent judges to account.

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