Politics trumps merit in choice of judges
International judges are required to decide upon an increasingly wide range of issues of global importance, yet very few people know how these powerful decision-makers are selected. Our three-year judicial selection project was an attempt to shed some light on the subject (Mackenzie, Malleson, Martin and Sands, Selecting International Judges: Principle, Process and Politics, Oxford University Press, 2010). Based on interviews and case studies, our findings confirm that although the integrity and ability of the judges are not generally in issue, there are real dangers that political influence can have a distorting effect on the goal of selecting the most meritorious and independent candidates.
Focusing on the selection of judges to the International Court of Justice (ICJ) and International Criminal Court (ICC) our research shows that the nomination process by which states put up candidates for election is critical in determining the quality of judges selected.
Yet in the absence of detailed guidance on the process in the provisions of the ICJ and ICC Statutes states have been left to establish their own practices. The result is considerable inconsistency in the nature and quality of the ways in which judges are nominated.
Some states use formal, transparent and merit-based systems, others rely on informal personal recommendations; prioritising the views of the friends and contacts of members of the government.
The more informal the process, the more politicized it is. Most states use processes which are both very informal and highly politicised.