Election of judges to the International Court of Justice

Last week, the General Assembly and the Security Council elected five new members of the International Court of Justice (see press release). The elected judges are: Judge Awn Shawkat Al-Khasawneh (Jordan) and Ronny Abraham (France) who were both re-elected. Messrs. Antônio Augusto Cançado Trindade (Brazil), Christopher Greenwood (United Kingdom of Great Britain and Northern Ireland), and Abdulqawi Ahmed Yusuf (Somalia) were elected as new Members of the Court.

Some underlying data: the ICJ consists of fifteen members, no two of whom may be nationals of the same state (Art. 3 ICJ Statute); members of the Court are being elected by the General Assembly and by the Security Council from a list of persons nominated by the national groups in the Permanent Court of Arbitration (Art. 4); the General Assembly and the Security Council proceed independently of one another with the election (Art. 8); in the ICJ as a whole the representation of the main forms of civilization and of the principal legal systems of the world should be assured (Art. 8); an absolute majority of votes in both the General Assembly and in the Security Council is necessary (Art. 10); members of the court serve for a nine-year term and may be re-elected.

Interestingly enough, Mr. Abraham ( France), Mr. Al-Khasawneh ( Jordan), Mr. Cançado Trindade ( Brazil) and Mr. Greenwood ( United Kingdom) were elected by the General Assembly and the Security Council in the first round of balloting (see press release by the Security Council and press release of the General Assembly). While the Security Council also elected Mr. Yusuf (Somalia) in the first round, the General Assembly instead elected as the fifth member Ms. Defensor-Santiage ( Philippines), who in the Council had received only 5 votes (8 being the required majority). After the Republic of the Congo withdrew the candidacy of Sayeman Bula-Bula after the third ballot, Mr. Yusuf could be elected in a fourth round of balloting against Miriam Defensor-Santiago ( Philippines) and Maurice Kamto (Cameroon).

What might spark some interest is not that Mr. Yusuf faced such difficulties in being elected, but that Mr. Greenwood was so easily elected. In the General Assembly he received 157 votes, second only to Mr. Cançado Trindade’s 163, and in the Security Council received 15 out of 15 votes. Why is this surprising? Some perhaps remember that Mr. Greenwood was one of the few who in 2003 argued that the Iraq war was backed by the various available resolutions of the Security Council. This fact was apparently enough to trigger the opposition of some members of the British parliament against the nomination of Mr. Greenwood. Mr. Greenwood’s memorandum on the legality of using force against Iraq, which was addressed to the then Attorney General, Lord Goldsmith, had the following concluding points:

Accordingly, my conclusion is that military action against Iraq would be justified if:

(1)  The Security Council gave a fresh authorization to use force and military action was taken in accordance with that resolution; or

(2)  The Security Council indicated that Iraq was in material breach of Resolution 687 (1991) and that breach entailed a threat to international peace and security, in which case action would be justified within the framework of Resolution 678 (1990); or

(3)  Iraq posed a threat of an imminent armed attack against the United Kingdom or its allies and military action could therefore be taken under the right of self-defence.

His opinion ran contrary to the legal advice that the Attorney General was receiving from the Foreign Office, which had expressed doubts about the legality of invading Iraq based on UN resolution 1441. Without going into any of the details of the legality of the invasion of Iraq, it is nonetheless interesting to see that neither in the Security Council nor in the General Assembly – organs where political concerns can be raised – did the member states seemingly voice any opposition based on Mr. Greenwood’s opinion on Iraq. One may wonder how this is possible, considering that so many countries were heavily involved in arguing for the illegality of the invasion of Iraq. Perhaps this issue should be considered a very encouraging expression of states adhering to Art. 9 of the ICJ Statute which states that “electors [UN member States] shall bear in mind […] that the persons to be elected should individually possess the qualifications required” and that “in the body as a whole the representation of the main forms of civilization and of the principal legal systems of the world should be assured”, i.e. merely concentrating on the compliance with formal criteria.