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Discussion covers the appointment of judges

Justice Staff Writer

Published: Monday, October 28, 2013

Updated: Monday, October 28, 2013 23:10

A discussion with Law Professor Christoffer Wong of Sweden’s Lund University last Tuesday brought together a small group of Brandeis students and faculty interested in discussing ethics of the appointment of judges to the International Criminal Court. Many attendees mentioned their involvement with the University’s Brandeis in the Hague program, a program in the Netherlands that introduces students to international courts.

The International Criminal Court, apart from the United Nations system, is an “[i]ndependent, permanent court that tries persons accused of the most serious crimes of international concern, namely genocide, crimes against humanity and war crimes,” according to the ICC website. The court has 18 judges distributed between the appeals, pre-trial and trial chambers. According to the website, it is governed by the Rome Statute, which is the treaty that established the ICC and was written in 1998. The statute was ratified by 60 countries in 2002 including the United Kingdom, France and Germany. As of July 2012, 122 countries are States Parties to the Rome Statute, according to the website. The United States, however, has not yet ratified the statute.

Wong’s presentation focused on the role of academics in the ICC courtroom, demonstrating their faults and merits as ICC judges. He also discussed how ICC requirements could better reflect increasing variation among academics studying law.

At a recent conference on humanitarian law at Lund University, participants raised concerns regarding the qualifications of current ICC judges. According to Wong, the issue is raised at many forums. Objections to the judges’ qualifications included claims that they were too old and that too many were diplomats without formal criminal law backgrounds. Wong said the objections “actually [sparked] my own existential crisis … because if you can criticize the diplomats, how about the academics?”

Both academics and diplomats appear to be eligible to be appointed as ICC judges according to Article 36 of the Rome Statute, said Wong. “It doesn’t actually set any common standard for the ICC,” he said, other than requiring candidates to be, quoting from the statute text, “persons of high moral character, impartiality and integrity, who possess the qualification required in the their respective states for appointment to the highest judicial offices.”

Wong explained that qualifications vary from state to state. While some states would appoint judges on a merit basis, the appointment of others may be “dictated by political elites.”

Special ICC requirements decide the legal background of appointed judges. They require a minimum of nine judges who have criminal law experience and a minimum of five who have international law experience, explained Wong. Diplomats and scholars of international humanitarian law and human rights law are therefore eligible to be appointed as ICC judges within the smaller, international law category.

It is important to note, however, that this ratio based on experience is subsidiary to gender and geographical requirements, according to Wong. Leigh Swigart, director of Programs in International Justice and Society at the International Center for Ethics, Justice and Public Life, recalled that the first Japanese judge on the ICC bench was a non-lawyer diplomat.

According to an article written in 2010 for The Guardian, Japanese judge Fumiko Saiga is regarded by experts as an example of an unqualified judge, without “a law degree or any legal qualifications.”

“They wanted so much to have Japan to be a member of the court that they took that nomination,” Swigart said. Neither Swigart nor Wong, however, suggested such radical displacement of experiential requirements was common.

Scholars appear to be disadvantaged in several ways by the ICC qualifications for judge appointment. Wong found that cases brought to the ICC in recent years have revealed the need for greater participation of academics on the bench.

The requirement of fewer judges with international law experience than criminal law experience reflects an outdated assumption that only the appeals chamber, one of the three chambers of the ICC, would require academic, as opposed to administrative, skills, he explained. Major issues of jurisdiction and permissibility entering a second chamber, the pre-trial chamber, have required extensive reasoning of laws and attention to detail that befits academics more so than criminal law-trained judges, said Wong.

Despite the benefits that academics could provide, Wong admitted several weaknesses of scholars on the bench. First, legal academics sitting as judges may face ethical issues surrounding their independent work because in international courts, scholarship may be used as law, said Wong. Unlike national law, he explained, which depends heavily on interpretations and precedents, “[i]nternational law is really law of the states. It really has no permanent court or legislature that actually defines what international law is.” A further weakness Wong said he observed was a tendency some academics may feel to ask irrelevant questions in pursuit of answering their research topics. He suggested such behavior was at the expense of a case.

The field of law in academics is evolving in ways that make the 1998 Rome Statute outdated, according to Wong and Director of the International Center for Ethics, Justice and Public Life Daniel Terris, who participated in the discussion. Current international criminal law scholars would be placed in the criminal law department and would not count toward the ICC’s “international law” quota that allows international humanitarian and human rights scholars to become judges, explained Wong.

This was not acknowledged in the 1998 statute, explained Terris, because the court was “too young.” “Nobody had a deep knowledge of international criminal law when that statute was drawn up,” he said. Wong, for these reasons, declared that it was necessary to revise the ICC’s statute in regard to its requirements for judges. 

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