System for appointing judges 'undermining international courts'

Politicised voting and a lack of transparency has led to unqualified judges taking key positions, study claims.

A "toxic" system for appointing the world's most senior judges is fundamentally undermining the legitimacy of international courts, a new study claims.

Unqualified judges, in some cases with no expertise on international law and in one case no legal qualifications, have been appointed to key positions because of highly politicised voting systems and a lack of transparency, the Guardian has learned.

Critics say that the practices threaten the future of the international criminal court, which deals with cases of war crimes and crimes against humanity, and the international court of justice, the UN court which deals with disputes between nation states' courts.

"There are a number of judges who really shouldn't be there," said William Pace from the Coalition for the International Criminal Court, which lobbies for reform of the ICC.

Experts point in particular to the case of a Japanese judge who did not have a law degree or any legal qualifications, and was appointed to the ICC after Japan provided financial support.

Fumiko Saiga, who had been overseeing ICC proceedings relating to war crimes in the Democratic Republic of the Congo, died suddenly of a heart attack last year aged 65. There had been claims that she was unqualified for the post.

"To elect a person to the ICC who doesn't even have a law degree for example, is a most unfortunate precedent to have set," said Pace. "We were facing the prospect of a defence lawyer appealing a case on the basis that the judge was not qualified."

"This is deeply troubling for a court which is dealing with some of the most serious criminal cases and the deprivation of liberty for human beings," said Philippe Sands, one of the authors of Selecting International Judges, published tomorrow.

"International judges make decisions every day that affect the lives of people around the world."Although the appointments process for international courts has long been criticised as obscure and open to political interference, little is actually known about the means by which judges are appointed.

"Almost nothing is known about the selection process at international level," said Kate Malleson, professor of law at Queen Mary, University of London, one of the book's co-authors."It's actually very difficult to assess what effect this is having on the quality of the courts' work because so little is known. But anecdotally we know that some judges are first class, and that others are only there as a consequence of a highly politicised system, and who are not necessarily the best candidate," Malleson added. "This has potentially very serious implications for bodies which should have the very best, independent superb judges form around the world."

Nation states, who nominate judges from their own and other countries to stand for positions in international courts, have been accused of "vote trading", a practice where states lend their support to nominees from other countries based on political considerations, rather than judicial expertise.

Last year, Human Rights Watch warned against the practice. "Vote trading over ICC positions could lead to the election of poorly qualified judges, and hence to a bench that will not be the most skilled and representative," the organisation said in a memorandum to the ICC. "Human Rights Watch urges states parties to put aside narrow interests and vote only for the most highly qualified judges."

Although the findings in today's research relate to the ICC and ICJ, there are more than 30 international courts and tribunals covering approximately 200 nations, many of which have faced similar criticisms.

In a fiercely critical speech last year Lord Hoffmann, a former law lord, accused the European court of human rights of choosing judges "in a manner which is totally opaque."

Although some degree of political interference is regarded as inevitable in courts governed by international relations, today's findings argue that the process should be more in line with the appointment of judges within countries.

"At national level, the trend is for more professionalised, depoliticised systems, where we know a lot about the background, characteristics of judges who are chosen and put forward," said Malleson. "Most people assume there is an equally complex rigorous vetting process for international courts, but that is not the case."

(Published by Guardian - September 8, 2010)