Choosing judges.

Wanted: better judgment, fewer crowd-pleasers and

lickspittles.
Should judges be elected or appointed? In the case of international courts,
this age-old conundrum has a new twist

BARACK OBAMA wasnt the only person selected by American voters this month.
They also cast ballots for thousands of state-court judges, after expensive, rancorous
campaigns. No other nation in the world chooses judges by this stirringly democratic
method, as Sandra Day OConnor the first woman to sit on the Supreme Court
has noted. In her view, that is because most countries know youre not going to get
fair and impartial judges that way.Barring a few Swiss cantons, the elevation of
judges by popular vote is indeed rare. But in international tribunals, from the
International Court of Justice (better known as the World Court) to the European
Court of Human Rights, judges are typically elected albeit by national
representatives, not popular franchise. And as with the American system, there is no
guarantee that such ballots will produce individuals who are qualified or honest. As a
result, decisions affecting millions of lives can be taken by questionable people:
government hacks and lickspittles, with little or no judicial experience, who have
demonstrated their loyalty to their governments by defending the unconscionable, as
one human-rights lawyer puts it. Among the five judges elected earlier this month by
the UN General Assembly and Security Council to the 15-judge World Court was a
nominee from Somalia, a country listed by Freedom House, an American think-tank,
as among the worst of the worst in respect of civil and political liberties. Of course,
bad countries can produce fine individuals; but some find it troubling that the court,
which rules on disputes between states, now includes three judges from countries
rated by Freedom House as not free (China, Russia and Somalia) and another
three from countries deemed partly free (Jordan, Morocco and Sierra Leone).
Critics of the court have tried to draw a link between its dubious membership and its
more controversial decisions. Soon after the courts advisory opinion of 2004 on the
wall erected by Israel in the West Bank, calling the barrier a breach of humanitarian
law, Eric Posner, a law professor at the University of Chicago, made a withering
attack. Blasting the court as irrelevant and increasingly ignored, he blamed partial
judges for its decline. He claimed that 90% of the time they vote for their home state
or else line up with nations of a similar stripe: the rich with the rich, the
authoritarian with the authoritarian. Of course, his points do not prove that the court
was wrong about the wall but they do challenge its role as a moral arbiter. Getting a
seat on a UN-backed international tribunal, with a salary of around $170,000 a year,
is a tempting prospect in poor countries where judges earn barely a tenth of that.
Small wonder that some governments promote candidates as a reward for services
rendered. (One member of a war-crimes tribunal turned out to have few qualifications
other than being the cousin of his countrys president.) But stereotypes can mislead:
many judges from poor places are outstanding, while those from rich lands can be
dreadful. The 47 judges of the European Court of Human Rights, one for each
member of the Council of Europe (not to be confused with the European Union), are
elected by the councils parliamentary assembly. The only requirement is that
candidates be of high moral character and either have the qualifications required for
high judicial office in their own country, or are lawyers or academics of recognized
competence. This is not a high hurdle for candidates from ex-communist countries
whose legal systems are still tainted. Many nominations reflect cronyism, not legal
expertise and the European Courts rulings are binding on all member states.
Similarly vague qualifications are asked of the 18 judges of the International Criminal
Court, along with a need to reflect the worlds main legal systems and a desire to
achieve an equitable distribution by geography and sex. Appointed usually for nine
years, ICC judges must be elected by a two-thirds majority of the courts 108
member states. All but two of the present bench are from lands deemed free
(including some poor ones); none is from a not free country. As the ICC has yet to
start its first trial, it is too early to judge its judges. But in America, where some 60%
of state appellate judges and more than 80% of state trial judges face contested
elections, noisy political contests certainly contribute to an endemic lack of
confidence in the judiciary, at least at state level. (Federal judges are not elected.)
Most states allow candidates to raise funds, often running to millions of dollars.
According to one poll, 70% of Americans think campaign contributions sway judges
decisions. At least international courts are not plagued by angry electoral battles.
Indeed, given the hurdles faced by such tribunals, it is amazing how well most of
their judges do their job. But they might work even better were they to adopt the
merit-based model now being set up by the UN in the first overhaul of its own
internal justice system (which deals with discipline and grievances) in more than 60
years. Some 50,000 UN staff around the world will be affected. Following a report by
a panel of experts who called the present peer-review system outmoded,
dysfunctional and ineffective, Ban Ki-moon, the UNs secretary-general, has named
a five-member Internal Justice Council, including three distinguished external jurists.
Its job is to advise on suitable candidates for a new, two-tiered, independent system,
staffed by professional judges with at least ten years experience. Although the
council was asked to pay due regard to geography, this is no longer a deciding
factor. In response to press advertisements (another novelty) as well as through the
UNs own website, 237 applications were received from 55 countries. The 41 top
candidates went to The Hague for an interview and two-hour written exam, before a
final list of 25 names was drawn up, roughly two for each available post. Two-thirds
of the finalists come from countries with sophisticated judicial systems. That should
cut the risk of lamentable choices when the General Assembly elects the new judges
next month. (The Economist, 2012)
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