Brooklyn Journal of International Law Volume 38|Issue 2 Article 1 2013 Diversity and the International Criminal Court: Does Geographic Background Impact Decision Making? Abhinav Chandrachud Follow this and additional works at:https://brooklynworks.brooklaw.edu/bjil Recommended Citation Abhinav Chandrachud,Diversity and the International Criminal Court: Does Geographic Background Impact Decision Making?, 38 Brook. J.Int'lL.(2013). Available at:https://brooklynworks.brooklaw.edu/bjil/vol38/iss2/1 This Article is brought to you for free and open access by the Law Journals at BrooklynWorks. It has been accepted for inclusion in Brooklyn Journal of International Law by an authorized editor of BrooklynWorks. DIVERSITY AND THE INTERNATIONAL CRIMINAL COURT: DOES GEOGRAPHIC BACKGROUND IMPACT DECISION MAKING? Abhinav Chandrachud* INTRODUCTION .................................................................. 487 I. THE DIVERSITY DEBATE ................................................ 490 A. Geographic Diversity ............................................... 494 B. Religion, Race, and Gender ..................................... 501 II. DIVERSITY AND THE ICC .............................................. 508 III. DOES DIVERSITY IMPACT DECISION MAKING ON THE ICC? ................................................................................. 512 CONCLUSION ..................................................................... 518 APPENDIX: JUDGES OF THE INTERNATIONAL CRIMINAL COURT (2003-12) .............................................................. 520 INTRODUCTION Unelected judges in democracies are embodiments of coun- termajoritarianism.1 Unlike democratic legislators and accountable parliamentarians, judges do not represent constit- uency interests, nor are they directly accountable to the peo- ple.2 Ironically, the countermajoritarianism of unelected judges * J.S.D. Candidate, Stanford Law School. J.S.M. (Stanford), LL.M. (Harvard), LL.B. (Mumbai). I am grateful to Professor Helen Stacy for her excellent and thought-provoking course on international human rights at Stanford. I am especially grateful to Fernan Restrepo for all his help with and advice on the quantitative component of my paper. I thank Professor Kate Malleson for discussing the judicial appointments system in the United Kingdom with me. I am also grateful to Nicholas Cade, Alexander Csordas, and the editorial team at the Brooklyn Journal of International Law. Any faults with this Arti- cle are my own. 1. See generally ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 16–23 (1962). 2. The conventional argument is that judiciaries in liberal democracies are “democratic” for two reasons: (1) they are appointed by elected branches 488 BROOK. J. INT’L L. [Vol. 38:2 is considered to be their greatest virtue in a democracy. Judges are meant to protect “discrete and insular minorities”3 from the obdurate will of the majority.4 They constitute pockets of liber- tarianism within democracy’s Benthamite obsession for the greatest good of the greatest number.5 International courts should be no different, and unlike deliberative international treaty-making organs, international judges do not represent the viewpoints of their constituencies. Unlike the Security Council and the General Assembly of the United Nations, for example, judges appointed to the International Court of Justice (“ICJ”) do not represent the values or interests of their home countries. Yet, international instruments require that the com- position of international courts and tribunals must fairly re- flect the diverse geographic realities of the geopolitical world.6 Deliberative bodies are representative, but courts are not— why, then, does the international system insist on appointing judges from different geographic regions to international courts and tribunals? Legal realists may find the short answer—legitimacy—to be unsatisfactory. True, a “rainbow court”7 which fairly reflects the demographic characteristics of the region in which it is sit- uated might be perceived as being more legitimate, but inter- national courts are seldom honestly diverse. Judges of “P5” countries disproportionately serve on these courts, and judge- ships on international courts are staffed in such a manner that the region which has the most interest in the court’s outcomes gets the most representation on the court.8 Since the 1930s,9 of government, from whom they derive their political legitimacy; and (2) polit- ical branches of government retain the power to remove judges. 3. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938). 4. See generally JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 73–104 (1980). 5. The reference here is to Jeremy Bentham who advocated the idea of the greatest happiness of the greatest number. See D.D. RAPHAEL, BRITISH MORALISTS 1650-1800, at 314–46 (Hackett Publ’g Co. 1991) (1969). 6. See infra notes 43–56 and accompanying text. 7. This is a term which is often used in the context of the South Africa Constitutional Court. See, e.g., Kate Malleson, Appointments to the House of Lords: Who Goes Upstairs, in THE JUDICIAL HOUSE OF LORDS 1876–2009, at 112, 115 (Louis Blom-Cooper et al. eds., 2009). 8. See infra text accompanying notes 50–56. The “P5 countries” (the per- manent members of the United Nations Security Council) are the United States, the United Kingdom, France, Russia, and China. 2013] DIVERSITY & THE INT'L CRIMINAL COURT 489 legal realists have claimed that judges decide cases on the ba- sis of “pre-existing social and political commitments.”10 On in- ternational judicial bodies, for example, there is evidence to in- dicate that the proportion of judges from common law countries on a panel will affect the likelihood of dissent,11 and that judges of the European Court of Human Rights who were formerly government lawyers will be far more deferential towards raison d’état than private lawyers or academics.12 Scholars have ex- tensively debated whether a statistically significant level of alignment exists between a judge on an international tribunal and the judge’s home country.13 Consciously or unconsciously, then, judges from certain backgrounds might be more (or less) partial to certain causes. Does the geographic background of an international judge impact the manner in which he or she de- cides cases? If so, is the legitimacy of regionally diverse courts offset by the fear of bias? In this Article, I seek to quantitatively understand how geo- graphic diversity impacts decision making on the International Criminal Court (“ICC”). So far, the ICC has dealt exclusively with cases arising out of the African continent.14 Against this backdrop, increasing numbers of judges from the African Group of States have been appointed to the ICC, perhaps on an im- plicit understanding that their presence on the court is essen- tial to preserve its legitimacy. My research question is: does the presence of a higher number of judges from the African Group of States impact the court’s attitude towards African defend- ants? With an increase in the number of judges from the Afri- can Group of States appointed to the ICC, has the court become 9. See Sarah Westergren, Note, Gender Effects in the Courts of Appeals Revisited: The Data Since 1994, 92 GEO. L.J. 689, 689 (2004). 10. Barry Friedman, Taking Law Seriously, 4 PERSP. ON POL. 261, 263 (2006). 11. See Allison Danner & Erik Voeten, Who Is Running the International Criminal Justice System?, in WHO GOVERNS THE GLOBE? 35, 37 (Deborah D. Avant et al. eds., 2010). 12. See Erik Voeten, The Politics of International Judicial Appointments, 9 CHI. J. INT’L L. 387, 390–91 (2009). 13. See, e.g., Il Ro Suh, Voting Behavior of National Judges in Internation- al Courts, 63 AM. J. INT’L L. 224, 224–36 (1969); Erik Voeten, The Impartiali- ty of International Judges: Evidence from the European Court of Human Rights, 102 AM. POL. SCI. REV. 417, 417–18 (2008). 14. See, e.g., Is Africa on Trial?, BBC NEWS (Mar. 27, 2012, 4:21 ET), http://www.bbc.co.uk/news/world-africa-17513065. 490 BROOK. J. INT’L L. [Vol. 38:2 more (or less) pro-defendant in its approach, at a statistically significant level, controlling for other factors? If so, can an ar- gument plausibly be made that a disproportionately “diverse” court undermines its own legitimacy by making it susceptible to bias? Part I begins by analyzing formal rules and informal norms that require national and international courts to be staffed by “diverse” judges, in order to understand the purposes that di- versity serves on courts and to develop a framework for deter- mining when those purposes may be compromised. Much of the literature acknowledges that diversity lends legitimacy to courts by making judges “inclusive symbols,” and it typically refutes claims of bias by arguing that diversity makes courts “structurally impartial.”15 However, the literature does not ac- count for the fact that diversity on courts, especially interna- tional courts, is seldom “fair” or “equitable.” The diversity rules of the ICC will be situated within the wider context of this dis- cussion. Part II examines formal and informal diversity ar- rangements for staffing judgeships on the ICC. In Part III, by coding decisions of the Appeals Chamber of the ICC issued be- tween 2006–2012, and carrying out a logistic regression analy- sis, this Article presents evidence that suggests that the geo- graphic background of judges, amongst other factors, potential- ly does make a difference to the manner in which international judges decide cases. This Article presents quantitative evidence that suggests that the post-2009 Appeals Chamber of the ICC, which had a higher number of judges from the African Group of States serving on it as compared to the pre-2009 Appeals Chamber, held against African defendants at a statistically significant level compared to the pre-2009 Appeals Chamber. I conclude with a discussion of what this could potentially mean for the legitimacy of international judicial institutions. Data concerning the judges of the ICC and its decisions have been obtained from the website of the ICC.16 I. THE DIVERSITY DEBATE Proponents of diversity argue that it enhances a court’s legit- imacy, builds public confidence in the court, remedies past ine- 15. See infra text accompanying notes 38–42. 16. INT’L CRIM. CT., http://www.icc- cpi.int/EN_Menus/icc/Pages/default.aspx (last visited Jan. 3, 2013). 2013] DIVERSITY & THE INT'L CRIMINAL COURT 491 qualities, and improves the quality of decision making on the court by bringing a diversity of perspectives to its opinions.17 A court which fairly reflects18 different religious, ethnic, geo- graphic, gender, or racial components of society may signal that it is “open to all.”19 Scholars have suggested that diversity on courts may have symbolic or descriptive value on the one hand, or substantive value on the other.20 At the symbolic or descriptive level, a judge from a “nontradi- tional”21 background may become an inclusive symbol, or stand for something he or she physically resembles, despite not nec- essarily holding the same viewpoints of members of the com- munity for which she stands or appears to represent. For ex- ample, Clarence Thomas, an African American justice on the U.S. Supreme Court, does not share the views held by many members of the African American community in civil liberties cases,22 although he stands for or symbolizes members of that community on the U.S. Supreme Court because he physically resembles them. At the substantive level, a “nontraditional” judge is more than a mere “cosmetic symbol”23 on a court. By their very pres- ence on a bench, judges of “nontraditional” backgrounds may remove the prejudices that their colleagues may have about members of their community.24 Such a judge may also bring “traditionally excluded” perspectives to the cases being decided by the court. For example, feminist “difference theorists” argue 17. See, e.g., Mark S. Hurwitz, Women and Minorities on State and Federal Appellate Benches, 1985 and 1999, 85 JUDICATURE 84, 84–85 (2001). 18. See Shimon Shetreet, Judicial Independence: New Conceptual Dimen- sions and Contemporary Challenges, in JUDICIAL INDEPENDENCE: THE CONTEMPORARY DEBATE 590, 633–35 (Shimon Shetreet & Jules Deschênes eds., 1985). 19. See Barbara L. Graham, Toward an Understanding of Judicial Diver- sity in American Courts, 10 MICH. J. RACE & L. 153, 156 (2004). 20. Hanna Pitkin used the terms “descriptive” and “symbolic” to describe representation. See HANNA FENICHEL PITKIN, THE CONCEPT OF REPRESENTATION 11 (1967). 21. Sheldon Goldman & Matthew D. Saronson, Clinton’s Nontraditional Judges: Creating a More Representative Bench, 78 JUDICATURE 68, 69 (1994); Elliot E. Slotnick, The Paths to the Federal Bench: Gender, Race and Judicial Recruitment Variation, 67 JUDICATURE 371, 372 (1984). 22. See Sherrilyn A. Ifill, Racial Diversity on the Bench: Beyond Role Mod- els and Public Confidence, 57 WASH. & LEE L. REV. 405, 482 (2000). 23. Id. at 480. 24. See Westergren, supra note 9, at 699. 492 BROOK. J. INT’L L. [Vol. 38:2 that women bring different attitudes and values (e.g., caring, empathy, community) to cases as opposed to men (e.g., abstrac- tion, individualism).25 There is empirical evidence, for example, to suggest that women judges are harsher on women defend- ants.26 Minority judges might bring “special sensitivity” or “unique perspectives” to decision making.27 However, viewed through this prism, appointing a judge to a court on diversity considerations may enhance the legitimacy and public appeal of the court, but it may simultaneously strike a pejorative blow to the community sought to be represented by the appointment. After all, how can one unelected person “symbolize” or even “represent” the views of a community of others? This form of diversity representation presupposes unanimity of opinions within the community sought to be represented, and under- mines the very system of diversity it attempts to create. An un- elected judge from a certain racial, religious, ethnic, geograph- ic, or gender background cannot conceivably represent the di- verse values and opinions within the community. For this rea- son, appointing a minority judge to a court purely on diversity grounds would undermine the diversity of opinion which pre- vails within the community to which the judge belongs. Some critics of diversity on courts argue that it conflicts with the principle of merit in selecting judges. One scholar calls this the “merit/diversity paradox”: an apparent conflict between ei- ther selecting the best judges to a court, or selecting judges that best reflect the members of the society in which the court is situated.28 However, there are at least three reasons why di- versity considerations for judicial appointments do not conflict with the merit principle. First, scholars have suggested that merit is not necessarily compromised when judges from diverse backgrounds are selected to courts.29 History provides that jus- tices selected to the U.S. Supreme Court on diversity consider- 25. See id. at 691. 26. See John Gruhl et al., Women as Policymakers: The Case of Trial Judg- es, 25 AM. J. POL. SCI. 308, 320 (1981); Westergren, supra note 9, at 698. 27. Goldman & Saronson, supra note 21, at 68. 28. Leny E. De Groot-Van Leeuwen, Merit Selection and Diversity in the Dutch Judiciary, in APPOINTING JUDGES IN AN AGE OF JUDICIAL POWER: CRITICAL PERSPECTIVES FROM AROUND THE WORLD 145, 145 (Kate Malleson & Peter H. Russell eds., 2006). 29. See, e.g., BARBARA A. PERRY, A “REPRESENTATIVE” SUPREME COURT? THE IMPACT OF RACE, RELIGION, AND GENDER ON APPOINTMENTS 4 (1991). 2013] DIVERSITY & THE INT'L CRIMINAL COURT 493 ations always met a minimum standard of merit, and a few of them even went on to become some of the greatest justices the Court had ever seen.30 Second, merit cannot be defined in a so- cial or contextual vacuum. Within the Indian context, George H. Gadbois has suggested that the idea of merit is contextual.31 The diversity of a “nontraditional” judge might well be consid- ered an element of his or her own individual merit. Third, the very idea of merit may be “self-reflective,”32 “self-select[ing],”33 or “self-cloning.” In other words, the definition of merit varies with the persons who judge merit—judges of merit, consciously or unconsciously, may seek a replication of their own creden- tials in the candidate they seek out. The judge of merit may seek out a candidate who is least likely to challenge the estab- lishment.34 Some scholars have suggested that it is a “myth” that merit is a neutral standard.35 The conflict between merit and diversity has also been categorized as one between tradi- tionalists and behavioralists—the former want judges to objec- tively and neutrally find the law, the latter recognize that judg- ing is inherently a political process.36 Other critics of diversity argue that it conflicts with demo- cratic theory in that judges, unlike legislators, are not meant to “represent” constituents.37 In this sense, judges from “nontradi- tional” backgrounds who bring the perspectives of their com- munity to cases threaten to make themselves less impartial to their community’s viewpoint.38 Much of the scholarly literature argues that judges are seldom neutral adjudicators—judging, 30. See id. 31. See generally George H. Gadbois, Jr., Judicial Appointments in India: The Perils of Non-Contextual Analysis, 7 ASIAN THOUGHT & SOC’Y 124, 124–43 (1982). 32. Kate Malleson, Diversity in the Judiciary: The Case for Positive Action, 36 J.L. & SOC’Y 376, 381 (2009) (quoting Sian Elias, Chief Justice of N.Z., Ad- dress to the Australian Women Lawyers’ Conference (June 13, 2008), http://www.courtsofnz.govt.nz/speechpapers/13-06-08.pdf). 33. Rachel Davis & George Williams, Reform of the Judicial Appointments Process: Gender and the Bench of the High Court of Australia, 27 MELB. U. L. REV. 819, 835 (2003). 34. See Lady Hale, Making a Difference? Why We Need a More Diverse Ju- diciary, 56 N. IR. LEGAL Q. 281, 282 (2005). 35. See, e.g., Davis & Williams, supra note 33, at 830–33. 36. See PERRY, supra note 29, at 138. 37. See, e.g., Hale, supra note 34, at 287. 38. See id. 494 BROOK. J. INT’L L. [Vol. 38:2 in constitutional cases, is a political process—and personal val- ue choices often color decisions.39 For this reason, it is argued that “nontraditional” or “traditionally excluded” judges on a panel may ensure that no single set of people or values domi- nates a court’s opinions.40 In this sense, diversity is said to en- hance the “structural impartiality” of the court.41 There is also the criticism that allowing judicial appointments to be made on considerations other than merit, like diversity, will inappropri- ately afford a backdoor entry for political influence to enter the system of judicial appointments.42 However, this argument once again assumes that diversity candidates appointed to courts are non-meritorious. Ensuring that such candidates meet a certain threshold level of merit may serve to exclude political influence. A. Geographic Diversity There is a particularly large volume of literature on geo- graphic diversity in international bodies.43 Article 23 of the U.N. Charter calls on the General Assembly to elect non- permanent members to the Security Council, keeping in mind the principle of “equitable geographical distribution.”44 This principle seems to have percolated into international judicial bodies as well, even though judges nominated by states are not state representatives and do not represent national interests. International judicial bodies have formal mechanisms for en- suring geographic diversity. Although judges on the ICJ are required to be appointed regardless of their nationality,45 the statute of the ICJ formally provides that no two judges on the court can belong to the same nationality.46 Similarly, formal 39. See, e.g., Ifill, supra note 22, at 411–12. 40. See id. 41. Sherrilyn A. Ifill, Judging the Judges: Racial Diversity, Impartiality and Representation on State Trial Courts, 39 B.C. L. REV. 95, 106 (1997). 42. See Malleson, supra note 32, at 378. 43. See, e.g., Amber Fitzgerald, Security Council Reform: Creating a More Representative Body of the Entire U.N. Membership, 12 PACE INT’L L. REV. 319 (2000); Michael J. Kelly, U.N. Security Council Permanent Membership: A New Proposal for a Twenty-First Century Council, 31 SETON HALL L. REV. 319 (2000). 44. U.N. Charter art. 23, para. 1. 45. See Statute of the International Court of Justice, art. 2, June 26, 1945, 59 Stat. 1031, 33 U.N.T.S. 993. 46. See id. art. 3, para. 1. 2013] DIVERSITY & THE INT'L CRIMINAL COURT 495 provisions exist on the International Criminal Tribunal for the former Yugoslavia (“ICTY”)47 and the International Criminal Tribunal for Rwanda (“ICTR”).48 However, informal norms de- termine geographic representation on these bodies, and state representation on these bodies is not always equal. According- ly, “a judge from each P-5 member, except for China, has sat . . . on the ICJ since the Court’s inception,”49 and the remaining ten seats on the court are distributed regionally, such that Af- rica gets three seats (one seat each for North Africa, franco- phone Sub-Saharan Africa, and anglophone Sub-Saharan Afri- ca), Western Europe/Other, Latin America/Caribbean, and Asia each hold two seats, and one seat goes to Eastern Europe.50 This arrangement matches the distribution of non-permanent seats on the Security Council.51 Judges of P5 countries have also consistently held seats on either the ICTY or the ICTR.52 However, judgeships on the ICTY are dominated by Western judges, while judgeships on the ICTR are dominated by African judges,53 indicating that geographic representation on these bodies is organized in such a manner that the region that has the most interest in the tribunal’s outcomes, or in the stability of the area with which the tribunal deals, gets the most repre- sentation on the tribunal.54 It seems apparent that “equitable” geographic distribution on these bodies does not mean “equal” representation, and, in this sense, state representation on in- ternational judicial bodies does not comport with the principle of the sovereign equality of states, especially on account of the dominance of powerful states on these bodies. On the other hand, an informal norm dictates that each member state of the European Court of Justice gets to appoint a judge to the 47. See Statute of the International Tribunal for the Prosecution of Per- sons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, art. 12, para. 1, May 25, 1993, U.N. Doc. S/RES/827. 48. See Statute of the International Criminal Tribunal for Rwanda, art. 11, para. 1, Nov. 8, 1994, U.N. Doc. S/RES/955. 49. Jacob Katz Cogan, Representation and Power in International Organi- zation: The Operational Constitution and Its Critics, 103 AM. J. INT’L L. 209, 229 (2009). 50. See id. at 231. 51. See id. 52. See id. at 229–30. 53. See Danner & Voeten, supra note 11, at 49. 54. See id. at 50.