Judging international judges

One reader’s reponse to last week’s post on the questionable qualifications of many international judges: "No duh."

International law has been perverted and weaponized to wage war against unpopular nations. International law was once predicated on historic treaties and rights. Now fringe lawyers have a right to "interpret" laws to suit their own agenda. Justice is blind, human rights are universal — but when it comes to international courts, mob rule wins…

This pithily captures what I would describe as the John Bolton view of international judicial processes. His fear of the International Criminal Court was in large part based on a prediction that the court would become a hotbed of anti-Americanism, much as he believes the U.N. General Assembly has been over the years. Because it casts doubt on the appointment processes for international judges, the new study I reported on would seem to bolster this view.

I think the reality is much more complicated. In our discussion, Philippe Sands pointed out that many appointments to institutions like the ICJ come from the diplomatic ranks broadly speaking. The new American and Chinese judges to that court fall neatly into that category. The American, Joan Donoghue, was a long-serving State Department lawyer, and the Chinese judge was formerly China’s ambassador to ASEAN and the Netherlands. These are not the profiles of activists. They are the profiles of cautious, career government officials. Even outside of government, Donoghue has been an establishment type (she worked as a counsel for Freddie Mac!) They may not be inspired choices from the standpoint of international jurisprudence, and they are quite likely to rule in ways that support their countries’ broad interests (legal scholar Eric Posner has collected interesting evidence on this point).

But they are also quite unlikely to push the institutions on which they serve into risky confrontations. A pure and impartial international jurist will follow the law and the evidence where they go. A career diplomat, or even a lawyer who’s been working with diplomats for decades, will assess — perhaps unconsciously — the political and diplomatic ramifications of a case. In short, this type of jurist is unlikely to recommend that the ICC indict George W. Bush or Tony Blair.

There are all sorts of reasons to be concerned about the way international judges are appointed, but I don’t think the fear of radicals on the bench is at the top of the list.