Abstract

Judges who sit on the International Criminal Court (“ICC”) and other international criminal tribunals (“ICTs”) are nationals of particular states and are elected to serve largely on the basis of their nationality. Since the advent of the Nuremberg Tribunal, however, ICTs have perpetuated the notion that national identity is irrelevant to a judge’s performance of his or her duties.

This Article will contend that judges at the ICC and other ICTs should not preside over trials concerning crimes allegedly committed by or against their fellow nationals. Judges should also consider recusing themselves from cases that strongly implicate the interests of their home nations. Other international tribunals prohibit judges from adjudicating cases involving their home nations or otherwise control for national bias in judging.

Judges at the ICC and other ICTs undoubtedly strive to be independent and impartial, but they cannot be expected to act as representatives of the international community and its values in cases where they will be under psychological and economic pressure to rule in accordance with domestic interests. The parties to a conflict are also likely to use a judge’s nationality as a proxy for his or her capacity to be impartial.

Keywords: judges, international criminal court, ICC, national identity, bias, nationality, domestic interests, impartiality