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Selecting International Judges: Principle, Process, and Politics$

Ruth Mackenzie, Kate Malleson, Penny Martin, and Philippe Sands QC

Print publication date: 2010

Print ISBN-13: 9780199580569

Published to Oxford Scholarship Online: September 2010

DOI: 10.1093/acprof:oso/9780199580569.001.0001

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(p.180) APPENDIX 1 Research Methodology

(p.180) APPENDIX 1 Research Methodology

Selecting International Judges: Principle, Process, and Politics
Oxford University Press

A. Background

The two courts chosen to be the focus of the study, the International Court of Justice (ICJ) and the International Criminal Court (ICC), were selected primarily because they are broadly representative of the two different models of international judicial nomination and election procedures. As the older institution, the International Court of Justice applies rules and procedures based on those of its predecessor, the Permanent Court of International Justice. These provide only minimum individual selection criteria and requirements for the overall composition of the bench, while the guidance for the conduct of elections is purely advisory. In contrast, the International Criminal Court represents a newer and more formalized judicial selection model. It applies a complex procedure for the nomination and election of judges and formal rules which are designed to ensure a balance in the composition of the court, based on geographical representation, gender and legal expertise.

The literature search and background paper prepared at the beginning of the project indicated that there was little academic writing on this subject and scant information available in the public domain. This project is therefore one of the first attempts to gather detailed information on the nomination and election processes for international judges. The key to this subject appeared to be finding out what happens in practice, rather than assessing formal legal rules, so the project team focused the research on gathering baseline empirical qualitative and quantitative data.

The empirical research involved three main phases: (1) a questionnaire on national nomination processes which was distributed to a wide range of international judicial, legal, and governmental actors; (2) interviews with staff members (based in New York) of the Permanent Missions to the United Nations of a range of countries to elicit information on lobbying and election procedures; and (3) nine country case studies in different regions of the world to conduct interviews with key actors at the national level to gather more in-depth information about how candidates are selected for the ICJ and ICC.

The project was guided by an advisory committee, comprised of pre-eminent experts on international law, chaired by Lord Woolf, former Lord Chief Justice of England and Wales. The advisory committee was consulted on an ongoing basis as to the focus, structure and conduct of the research. However, it was clear that all responsibility for the research would rest with the project team.

An important methodological decision had to be taken early in the project as to whether the project should review the election of individual candidates. In conjunction with the advisory committee, it was decided that in light of the project objectives it would not be appropriate or desirable to scrutinize individual cases. Rather, the project should (p.181) focus, as the first extensive empirical study in this field, on the broader processes and issues raised by the nomination and election of international judges. It was determined that the data on nominations and elections would be gathered through the use of survey questionnaires and interviews.

B. Questionnaires

In late 2006, a questionnaire consisting of twenty-three multiple and free text questions was prepared to obtain factual information on the national nomination processes for judges of the ICC and ICJ and, where possible, information on election procedures. As recommended by the project advisory committee, a consultant survey instrument analyst was engaged to review the draft questionnaire.

In January and February 2007, the questionnaire was widely distributed in both hard copy and electronic formats. The target respondents were:

  • relevant staff members of the Permanent Missions to the United Nations in New York, including legal advisers and election officers;

  • academics;

  • Members of the Permanent Court of Arbitration national groups (a selection of PCA national group members from a range of countries was made, from the list available on the PCA website based on geography, language, legal culture and previous nominations);

  • Ministry of Foreign Affairs and Ministry of Justice Legal Advisers (again selected on the basis of geography, language, legal culture and previous nominations);

  • contacts from the Fifth Session of the Assembly of States Parties to the Rome Statute of the International Criminal Court in The Hague in November 2006; and

  • other relevant individuals identified through contacts of the project team.

The questionnaire was also distributed on an ad hoc basis to interviewees and other persons, and posted on the internet (accessible by the use of a password that was emailed to recipients). Forty-six responses were initially received, spread over the different groups. Respondents were asked to recommend further contacts so as to expand the ‘snowball’ sample of interviewees.

C. Interviews in New York

In early 2007, interview invitations were sent to 182 staff from the Permanent Missions in New York. This list was based on the frequency of previous nominations and successful campaigns, previous cases before the ICJ and regional, sub-regional and linguistic spread. In March 2007, interviews were conducted with nineteen staff from Permanent Missions to the United Nations from seventeen countries and a number of United Nations staff members. The Permanent Mission staff interviewed ranged from Permanent Representatives to Third Secretaries and, where possible, included the legal advisers and the election officers for those missions that have these posts. (p.182)

The interviews broadly followed a question guide that focused on aspects of judicial appointments of most concern and relevance to Permanent Mission staff: the lobbying and election procedures. Recommendations were sought as to potential interviewees in their particular countries, with a view to gathering information for the selection of countries in which to base case studies. Less structured contacts of this nature were also made at the Fifth and Sixth Sessions of the Assembly of States Parties to the Rome Statute of the International Criminal Court in The Hague in 2006 and New York in 2007.

D. Case studies

Methodology for selection of case study countries

To gather further detailed information on the national processes for the nomination of candidates to the ICJ and ICC, it was decided that between six and ten country-based case studies would be conducted. The objective was not to gather detailed information on individual countries with a view to producing seperate studies on those countries’ nominations processes; rather, it was to gather contextualized information across countries representing different geographical regions, legal cultures, levels of economic development, languages and political systems, and to study the process of judicial nominations and the interactions of the key local actors in discrete national contexts. It was also anticipated that each national context would have its own relationship with the regional and international levels. The intention was to gather data that would serve to highlight key issues generally arising in the nomination of candidates to the ICJ and ICC, with sufficient regard to variations across different regions, legal cultures and other factors. This data would then be used in the discussion of key thematic issues.

The selection of the countries to form the case studies in July 2007 was a particularly important decision for the project. In order to make the selection, the project team considered the data gathered in the preliminary research and consulted with the advisory committee. Then, based on this information and guidance, a list of criteria for the selection of countries was determined (not in order of importance):

  1. 1) Countries from all UN regional groups, and where funding allows, sub-regional groups;

  2. 2) One or two Permanent Members of the Security Council;

  3. 3) Countries that represent a range of legal systems and legal cultures;

  4. 4) Countries that represent different linguistic groupings (at least francophone, anglophone and hispanophone countries);

  5. 5) Developed and developing countries;

  6. 6) Countries with a previous record of nominations and perhaps also a record of successful campaigns to either ICJ or ICC or, ideally, both;

  7. 7) Countries with different national judicial appointment processes (ranging from strong executive involvement, judicial appointment commissions, parliamentary involvement, etc), which may or may not be applied to international judicial nominations and different international judicial nomination procedures (ie in those (p.183) countries where there is no Permanent Court of Arbitration national group to make ICJ nominations);

  8. 8) Countries of interest in light of recent elections to the ICJ and the ICC.

A key variable was the need for states selected for the case study to have some experience of making nominations and conducting campaigns for the ICJ and/or the ICC. In the light of this, a table was prepared setting out the number of nominations and successful elections by every country for the ICJ and ICC. Countries were then ranked by UN regional group in accordance with the frequency with which they had nominated candidates. Based on this information, a preliminary list of approximately twenty potential countries was produced in accordance with the criteria set out above. Where possible, the project team sought to ensure that overall, the list met the stated criteria to provide a balanced group of countries with a reasonably high overall level of previous nominations to the ICJ and ICC.

The preliminary list was then reduced to a ‘long list’ of approximately fifteen countries, to which two further countries were added on the advice of the advisory committee. This was done primarily through reconsidering the above criteria in addition to practical aspects, namely, the project budget, staff capacity, prospects for obtaining a sufficient number of interviews. The list was separated into a ‘likely’ list of eleven countries and a ‘reserve’ list of six countries.

Additional research was then completed on the seventeen countries to gather information on the previous nominations made by each country, current international judges and International Law Commission members, the national procedures for international nominations (if known), the processes for judicial appointments to the highest courts at the national level, potential interviewees, and likely cost. It also sought to identify key government and non-government contacts in each country who could be approached for advice as to the feasibility and conduct of the case study. For the ‘likely’ countries, these individuals were contacted and the majority provided input on potential interviewees and the likelihood of obtaining interviews. Based on this information, the ‘long list’ was reduced to a final list of nine countries.

Case study methodology

Prior to each case study, invitation letters were sent to potential interviewees that included an interview question guide, setting out in detail the proposed interview questions and aspects relating to recording and confidentiality. The interviews focused on nomination processes and, where relevent, they also covered lobbying and election procedures. They were not specifically focused on particular nominations; however, questions were posed relating to individual nominations to obtain information on general nomination processes. They also covered nominations to courts other than the ICJ and ICC at the regional and international levels and sought to elicit comparisons with national judicial nomination processes.

In each case study country, invitation letters were sent to a range of government representatives, Permanent Court of Arbitration national group members, Bar Association representatives, senior judges, academics and NGO representatives. The objective was to interview people both within and outside of the relevant processes, including former candidates and judges. Potential interviewees were determined based on a review of (p.184) United Nations documents, Permanent Court of Arbitration documents, documents from organizations such as the International Law Association and the Institut du Droit International, and internet-based research. Potential interviewees were also identified through the project team's contacts and by personal recommendations of other interviewees. In many cases, a ‘snowball’ effect developed, with interviewees recommending other potential interviewees and so on. We sought to ensure the inclusion of those people who would bring a range of perspectives and personal or institutional interests; for example, we wanted to interview both successful and unsuccessful judicial candidates.

As a result of the sensitivity of the data being sought, interviews were conducted on a confidential basis, to ensure that the most detailed information could be gathered without interviewees being concerned that they could be identified. The interview invitation stated that any statements made in an interview would not be attributed to the interviewee in resulting project publications, except with prior agreement. Interviewees were also informed that in the final project outputs, every effort would be made to draft the text to avoid identification of the interviewee or any individuals referred to. Furthermore, the interviewee's name would not appear in the list of interviewees unless otherwise agreed. To ensure the highest level of confidentiality, it was subsequently decided that even a partial list of interviewees would not be included in this publication.

Interviewees were informed that the interview would be recorded and verbal consent for tape-recording was obtained at the outset of the interview. The vast majority of interviewees agreed to be tape-recorded and masked transcripts were made of those interviews for internal use by the project team.

The interviews were conducted on a semi-structured ‘funnel’ format, with the interview commencing with more general issues before focusing on more detailed questions, according to the role and knowledge of the interviewee. The interview guide was not followed strictly and interviews developed organically in a conversational style. The majority of interviews were of around one hour in duration, with some significantly longer.

Where possible, the project team sought to verify and ‘triangulate’ data gathered through other interviews. This was done by raising questions with interviewees which would verify information provided by other interviewees, and also by undertaking external research so as to reveal any baseline assumptions and to verify factual information provided.

During the period October 2007 to May 2008, nine country-specific case studies were conducted, mainly by in-country visits, supplemented by telephone interviews. Each case study was of approximately three to five days in duration, depending on the number of positive interview responses received. In each country, approximately eight to ten interviews were conducted. The majority were conducted in English but some were also conducted in Spanish through an interpreter, or directly in French.

Analysis and presentation of data

In total, 106 interviews of approximately one hour's duration were conducted, which yielded some 82 interview transcripts and 50 file notes.

Data analysis was undertaken on a thematic basis, working from the written transcripts, file notes and other research materials. Further background documentary research was undertaken to supplement the base data gathered in the literature search completed (p.185) at the start of the project. In the light of the absence of an existing body of academic work on these processes, it was considered appropriate to use direct quotes from the interviews, where possible, with relatively little deconstruction. We considered that the language itself used by the interviewees revealed key assumptions and issues. It is through these direct quotes that the political and personal context of these processes became apparent to us, so we have sought to use them wherever possible, and have made only limited grammatical amendments to them. Where quotations are used in the text of this book, or where specific observations made by interviewees are referred to, citations are given in the footnotes to the relevant interview transcripts (T) or file notes (F).

A draft discussion paper was prepared in July–September 2008 setting out the project findings in relation to a limited number of key issues. This paper formed the basis of discussions at an expert seminar, convened in New York in September 2008, to bring together members of the Permanent Missions, academics, lawyers, judges and other commentators to seek their comments on the preliminary outputs. The comments gathered during this one-day seminar shaped the form of the final project findings.