The Challenge and Recusal of Judges of the International Court of Justice
Abstract
The rules and mechanisms to challenge and recuse a judge of the International Court of Justice (“ICJ”) are unique and pertain to the control mechanisms proper to permanent international dispute resolution bodies, characterized by a plurality of representative, elected judges. Indeed, the Statute of the ICJ (“Statute”) provides a series of control mechanisms aimed at ensuring the independence and impartiality of its judges. The drafters of the Statute adopted a multi-tiered approach, relying first on self-control of each judge, and then envisaging a subsidiary control role for the President and the Court as a whole. Third-party requests for recusals are provided for in the Statute, but are extremely rare. The Court relies mostly on a self-regulation system, by which it is for a judge to recuse him or herself when the case so requires. The President of the Court and the Court as a whole only step in to provide a back-up and ensure that the framework is respected. Thus, should reasons exist for which a judge should be removed or not sit in a case, the President and the Court retain the power to take the final decision, sua sponte or as requested by a party, to remove the judge. This approach is understandable, not only because it follows the tradition established by the predecessor of the ICJ, the Permanent Court of International Justice (“PCIJ”), but also because the situation at the ICJ is intrinsically different from that of arbitration: the ICJ is a permanent court, which acts as the principal judicial organ of the United Nations in inter-states disputes, its the bench is composed of fifteen elected judges who serve for relatively long terms. Thus, differently from arbitration, judges do not know what cases they will be called to decide and incompatibilities could arise after their election to the bench. Though self regulation has to a large extent be sufficient, the existing control system calls for examination especially in light of the increased caseload of the Court and the fact that the judges of the ICJ remain active member of the international legal community, including as international arbitrators. This chapter first briefly explains how the ICJ judges are elected and nominated. It then explores the issues of relative and functional incompatibilities of judges. Next, it describes and assesses existing mechanisms of control, including resignation, self-recusal and disqualification of judges. Finally, it assesses the three publicly known cases of recusals. The chapter concludes with a brief assessment of the practice.