Global standards on judicial independence and removal: grappling with vetting and fresh appointment

An independent, professionally skilled and widely trusted judiciary is indispensable to the rule of law. It is a great feat for national judiciaries to attain this level of functioning and some fall far short. This article asks whether international standards are sufficiently attentive to the challenge of reforming problematic judiciaries in post-conflict or post-authoritarian transitions, focusing on situations in which the removal of judges is sought. It discusses global standards that have some form of UN endorsement and approaches in the European system, concentrating on norms relating to the tenure, conduct and accountability of judges. In situations where judicial shortcomings are thought to be widespread, transitional societies have been willing to qualify judicial tenure and introduce exceptionnal, time-limited accountability processes such as fresh appointments to judicial posts, or systematic, individualised vetting. The article charts the growing understanding over the past 15 years that a rigid adherence to security of tenure may not always strengthen the rule of law and that exceptional measures may be necessary and considers the approaches that are emerging, particularly in the European system, for determining when exceptional removal processes are acceptable. It argues that the international norms require revision to deal with these situations and that the preferable approach is not to treat them flexibly, as currently in the European system, but to revise them.