The International Judge: An Introduction to the Men and Women Who Decide the World's Cases
March 19, 2008
JOANNE MYERS: I'm Joanne Myers, Director of Public Affairs Programs. On behalf of the Carnegie Council, I would like to welcome our members and guests, and to thank you for joining us.
Today we are very excited to be hosting a panel discussion on The International Judge: An Introduction to the Men and Women Who Decide the World's Cases.
For the panelists, we have Cesare Romano, Daniel Terris, and Judge Stephen Schwebel. Each of them will be speaking for about ten minutes.
It has been said that necessity is the mother of invention. Accordingly, in the wake of political revolutions and other upheavals, nations of the world have come together to create a new set of legal institutions to deal with a broad range of issues, from settling border disputes to holding individuals accountable for crimes of genocide, and from offering the promise of justice to those who cannot find it within their own countries to ruling on international trade disputes involving billions of dollars.
For many of us, the work of the international judges is poorly understood. The institutions they serve, such as the International Court of Justice, the International Criminal Tribunals for the former Yugoslavia and Rwanda, the Inter-American Court of Human Rights, and the WTO Appellate Body, have all been frequent targets of misinformed criticism.
In The International Judge: An Introduction to the Men and Women Who Decide the World's Cases, the editors of this volume, two of whom are with us this afternoon—Dan Terris and Cesare Romano—give us the first in-depth examination of the individuals who hear and decide these important cases and the political, moral, ethical, and legal concerns that animate their work. This book builds on the work of two academic undertakings, the Brandeis Institute for International Judges and the Project on International Courts and Tribunals which was jointly established in 1997 by the Center on International Cooperation at NYU and at the Foundation for International Environmental Law and Development at the School of Oriental and African Studies at the University of London.
In this afternoon's program, we will hear three perspectives on the subject of the international judge. Cesare Romano will introduce the panel. He is a scholar of international law whose decade-long management of the Project on International Courts and Tribunals has given him the opportunity to write extensively on international courts; in particular, on the legal and political aspects of their work.
Dan Terris was trained a historian and is a founder of the Brandeis Institute for International Judges.
Judge Schwebel served as a judge of the International Court of Justice for several years and will share his experience and expertise when he talks about his perspective from the bench.
Now, to learn just who these international judges are and the challenges they face, please join me in giving a very warm welcome to our distinguished panelists, in alphabetical order, Cesare Romano, Judge Schwebel, and Dan Terris.
Thank you all for joining us.
CESARE ROMANO: Thank you, Joanne. I will start, and I promise that we will keep on track, so that we will have ample time for discussion, questions, and answers.
As Joanne said in the introduction, the background context is the growing number of international courts and tribunals that have been established, especially since the 1990s, in the past 10 to 15 years. These courts operate—I don't know how many of you might be familiar with the whole range—they operate at various levels. Some are at a universal level. They are attached to the United Nations and exercise general competence—for instance, the International Court of Justice that had the honor of having Justice Schwebel as president, or the World Trade Organization Appellate Body, which is another one that usually comes up in the news, or the International Criminal Court. There are many other courts that have regional scope, some in the Americas, very important ones in Europe, many in Africa.
The fact is that usually scholars tend to approach international courts as international organizations, and therefore look at institutional aspects. But very rarely do they go beyond the façade and look at the people who animate these institutions. In the case of courts of law, the personality of the judges comes even more to the fore, because it's essential in determining, eventually, the outcome of the judicial processes.
The fact is that there is a general misunderstanding of international judges, in the sense that, because international courts are a recent phenomenon, they have quickly entered the international arena as major players. But there is very little understanding about who these people are, where they are come from, how they are trained, how they are selected, how they interact with each other once they are on the bench, how they interact across benches between international courts and tribunals, how issues like language shape their interactions and eventually create some force of hierarchies.
These are the topics that we set out to study. There are libraries describing classical international relations players, like diplomats. We know them very well. There are libraries describing international civil servants. But there is very little understanding about international judges. So we wanted to fill this knowledge gap.
Let me give you briefly a group picture. I don't know if you have ever been to Amsterdam, to the Rijksmuseum. There is The Night Watch, Rembrandt, the big portrait. Imagine that all these judges are all the people standing on that portrait.
Depending on what criteria you use to determine what an international court is, you might have something 18 or 19 currently existing and functioning international courts. Of these, only 13 are what we call consequential—that is to say, they have an important caseload or they decide cases that have major impact on international relations. If you count all the judges in those 13 courts together, you come out with a group of 215 people. These 215 come from 86 different countries.
I'm just giving you the data that we had in January 2006.
It's great geographic variation. All continents are represented. Europe has the majority, 65 percent of them. But that's only because most courts with the highest number of judges happen to be on the European continent. That is the European Court of Human Rights and the European Court of Justice.
Asia, which represents half of humanity, is underrepresented on the international bench, with only 16 percent of the judges. But again, this is due to the fact that there are no regional courts in Asia. Therefore, the numbers are distorted by that.
As background, 63 percent come from civil-law countries, countries with a civil-law system; 14 percent from common-law. The common-law element is numerically underrepresented, but when it comes to the functioning of the court, it's very important and in the forefront.
Gender: It's still very much a male profession. Seventy-nine percent of them are men; 21 percent of them are women.
I started keeping track of gender issues on the international bench ten years ago. I must say that this figure has gone from something like 3 percent to 21 percent in a decade. So there is an important trend that eventually, probably, in a decade or two, should lead to something closer to 50 percent.
There is a great diversity in the experiences and the origins of these international judges. We noticed also that they tend to study, at first, in their national universities, in their home countries, but then they move on to take advanced degrees in law in two countries, the United Kingdom and the United States. People trained in a civil-law system—a second point—had a significant opportunity to train themselves also in common law, and they tended to study within the same handful of institutions within the United Kingdom and the United States, which are the top-level universities.
Finally, they have a huge diversity of experience. Even right now, although there are a large number of courts and there is a large need of people to serve as judges, there is not yet a profession of "international judge." When we interviewed the judges for our book, most of them agreed on the fact that they couldn't plan to become an international judge. It was like the job that found them.
They basically come from three different walks of life, three professions. One is academia, which historically provided the majority of international judges, and still is the largest group, but only by a little margin over the second-largest group, which is national judges, judges who have been practicing at a high level of the judiciary in their home countries. The third group is civil servants. That includes both people who are civil servants for their national governments and for international organizations.
So we have a broad range of diversity of experience. But these three pools of people eventually bring something unique to the profession.
Joanne explained why we came to this work. Throughout the years, both Dan Terris and Leigh Swigart at the Brandeis Institute for International Judges and I, at the Project on International Courts and Tribunals, had the opportunity to get to know many of these people, to develop a relationship. Therefore, we thought it was only natural that we would bring our own intellectual interest to bear on this group. Dan is an historian by training. I am a legal scholar. Leigh is a linguistic anthropologist. So we thought that, among the three of us, we had the whole range of experiences and tools to investigate this.
So our book is done on a multidisciplinary approach. It's based on a set of interviews. We did 32 interviews with as many international judges, two to three hours each. We, of course, did the book with the agreement not to attribute anything that we wrote in the book, so if you find quotations, they are not attributed, because we wanted them to speak as freely as possible. I must say that they did. Dan, in a few seconds, is going to give you a glimpse.
Why we did this book was because we had one particular audience in mind, and that is people in the United States. We are very aware that in the United States there is at the same time both a very strong tradition of endorsement of the idea of rule of law in international affairs—the United States government has been instrumental in creating many of these international courts and tribunals—and there is reluctance to engage with some of these international courts and tribunals because of concerns that have basically to do with United States sovereignty, the United States' unique constitutional structure, and also the unique geopolitical position of the United States. Sometimes I use the line and say that the United States is not Belgium; you cannot ask the United States to have the same foreign policy towards international courts as Belgium does.
But also we saw that some of the criticism that has been leveled against international courts and tribunals and has been used to justify lack of engagement is based on two issues. One is the question that international courts are very often accused of being too political or too politicized, and therefore standards of ethics are considered to be somehow below or different from the standards that are usually applied to national judiciaries. This is used as an excuse for lack of engagement.
The second one is that there is a certain reluctance to have U.S. affairs—and that would mean, basically, decisions of the U.S. executive—second-guessed by foreigners. That is, if you want, an element that is present in the rhetoric of many politicians who have bashed international courts and tribunals. They are still doing that as an argument, that the United States could never accept the ruling of a foreign judge. That, I think, has to do with the fact: Who are these judges?
Hence, exactly our book.
DANIEL TERRIS: Thank you very much. It's a real pleasure to be here at the Carnegie Council for Ethics in International Affairs.
I run a center at Brandeis called the International Center for Ethics, Justice, and Public Life, which is almost as ambitious in its scope as this institution. One of our principal activities has been engagement in the sphere of these international courts and tribunals, which we see as crucial to providing alternate means to war and armed conflict in terms of settling disputes and furthering justice in the world.
It's also a great honor to be sharing the stage tonight with Judge Schwebel, who will be able to speak from his great experience as an American who has served on international courts and at the International Court of Justice, which is one type of the international courts and tribunals, one that deals with disputes between states.
I'm going to spend just a few minutes introducing you to a different judge, from outside of this country, on a different kind of court, and use her biography to shed a little bit of light on some of the key aspects about international judges and their work. I'm going to introduce you to Judge Navi Pillay from South Africa. She was born in Durban, in South Africa, daughter of the apartheid system, daughter of a bus driver in Durban. She describes herself as growing up as trebly disadvantaged—black, as a woman, and, as she says, of a poor class.
But education was enormously important in her family, and so she finally made her way to Natal University, where she studied law and had the pluck, the courage, and the competence to become the first woman to establish her own practice as a lawyer in Natal, even while apartheid was still going on. Unsurprisingly, perhaps, she took on a lot of racial discrimination cases, as well as criminal cases, as a young lawyer in Natal.
Early on, she found herself being drawn into the world of international law simply because of the kind of work that she was doing.
"As I defended cases of racial discrimination," she says, "I realized that I had to learn international humanitarian law, so that we could raise international legal norms as standards for justice in the courtroom. In cases under the Terrorism Act, the state would detain hundreds, torture them, and bring them to court as witnesses. We [we lawyers] had no access to those witnesses. We needed to know the rights of defendants and victims under conventions such as the International Convenant on Civil and Political Rights, the Geneva Convention, and the Torture Convention.
"We tried to raise these arguments in the courts, and the courts would say, 'We have our own laws. We are not interested in international law or the decisions of foreign courts.'
"That's what motivated me to learn about international law and human rights."
That was a passage from an interview in 2004 which has some resonance, I think.
So Navi Pillay found herself being drawn into this world of international law, and she was able to secure a fellowship to come to Harvard to study international law and human rights—a crucial moment, because it brought her into a kind of international sphere. When she returned to her country, she continued her practice of law. When democracy came to South Africa in 1994, Nelson Mandela appointed her as an acting judge of the South African Supreme Court, about which she has a great deal to say.
But she actually didn't serve there long, because it wasn't long before a new court was being established. That was the International Criminal Tribunal for Rwanda, set up in Arusha, Tanzania, by the United Nations to try the perpetrators of the genocide in Rwanda that had just taken place the previous year, in 1994. Navi Pillay, though she hadn't known much about the situation in Rwanda, was recruited to put her name forward as a judge for that court. She was elected by the United Nations and began to serve there in 1995.
There she found that her background in criminal law was actually very useful. She came kind of nervous about how she was going to fit into this international community, among distinguished international law professors and longtime civil servants, as Cesare mentioned. But it turned out that she was one of the very few who actually had criminal law experience in the early years of that court. She found herself in productive conversation with judges who had come from other backgrounds and found herself on some of the key cases of 20th-century international criminal law—the case of Jean-Paul Akayesu, one of the first convictions under the Genocide Convention, and on a very high-profile case, the media case. You may recall the radio broadcasts in Rwanda during 1994 that encouraged people, with various code words, to stamp out the cockroaches and were incitements to violence. Judge Pillay was one of those who sat on that case and secured the first hate-speech convictions under international criminal law.
She became the president of that court in 1998 and continued to serve until 2003, when she stepped down, thinking she would return to South Africa. But then she was quickly recruited to have her name put forward as a judge for the International Criminal Court, which was just coming into effect as of 2002. She was elected as one of the first members of the bench of that court, where she is today, as a member of its Appeals Chamber.
Navi Pillay's career illustrates several key aspects of the work of international judges. It particularly illustrates aspects that I think respond in important ways to some of the critiques that have been made of international courts and tribunals. In fact, while there are some institutional weaknesses on these courts—and Judge Schwebel has spoken about them, as well as other people—the work of the judges themselves, the men and women who are working on this, has really served to strengthen these institutions from the inside and really protect them from some of the worst kinds of potential threats to their effectiveness and their integrity.
The first of these themes is that biography matters. The biography of judges matters. Navi Pillay's work as a judge was fueled by her childhood experiences under apartheid. Of course, it's a challenge for any judge to balance between the passion that one brings as a result of biography and being faithful to the law and objective about the facts before one. But I think it's clear that the passion that judges bring and the experience that they bring are a source of strength. The source of strength that the 215 judges that Cesare mentioned, the wealth of experience that they have, has contributed to a kind of complementary strength on these courts that has worked against the institutional weaknesses.
The second main theme is that there is an emerging global judicial community that has allowed these judges to work in very powerful collective ways. Cesare talked about the enormous diversity of these courts. Some people looking from the outside have said, "Judges from 86 different countries, from all of these different legal systems, with all of these different backgrounds, and so forth—how is there going to be any stability and predictability in the international legal system? Is this really going to be law and justice, in any predictable way, the way it is within, in a best-case scenario, national court systems?"
The fact is that the apparent diversity of all these judges masks a lot of common experiences and mindsets. Navi Pillay went to Harvard. It turns out that a lot of international judges have spent time in the same small number of major universities in the world, where they have gotten to know each other, as well as adopting a kind of common mindset, so that when they enter these courts, there is a kind of community of knowledge that is much more important than the apparent diversity of that community. It adds a kind of strength to the collective process and allows the blend of professional experiences—people who have been judges, people who have been academics, people who have been civil servants—to bring different strengths.
After all, these are courts operating in a kind of unknown world, to a large extent, where you need international professors who can help move the law to the next stage; you need judges who have the practical experience to know how to run a courtroom, especially for the criminal courts; and you need civil servants who have some kind of awareness of the larger political context, because international courts can only succeed with the cooperation of governments. There is no firm legal order that requires states to comply. It takes a certain kind of voluntary regime. If you don't have judges sensitive to what will work and what will assure and help states feel confident in their work, you are unlikely to succeed.
The third theme is that these judges have done a great deal to advance the law in exciting and unpredictable ways, but done so with a very kind of cautious and traditional framework. Navi Pillay's contribution to this was that she was one of the judges who really helped prod the prosecutors and also worked collectively with her fellow judges to ensure the legal principle of rape as a war crime. Rape had been previously, of course, attacked under criminal jurisdictions all over the world, but never prosecuted as a war crime at the international level. Judge Pillay helped advance that law in her work.
Finally, Judge Pillay's work really highlights the fragility of the institutions that international judges work on. She tells stories about her own work as president, where, in Arusha, just literally getting the courtroom set, the windows fixed, the appropriate translation facilities in place was a constant challenge. So she and other judges have literally had to be builders of their institutions, not only in the legal sense, but in the very material sense as well.
She has had to work to kind of create the structures also to protect the courts from the human vulnerabilities of judges themselves. She has been instrumental, for example, in developing a code of ethics for the new International Criminal Court, which is built on the experiences, for better and for worse, of the ad hoc tribunals beforehand.
I think the lesson from Judge Pillay's life and work is that the courts that international judges are working on are still young. They are imperfect. They have problems that we would be happy to talk about. But the men and women who are engaged in building them have a kind of collective strength that has brought those courts a long way. If governments and citizens around the world place greater faith in the work of these judges as individuals, I think we will see the institutions develop more strongly in the future.
Judge Stephen Schwebel
STEPHEN SCHWEBEL: Thank you so much. It's a great pleasure to be here.
I would like to congratulate the authors on their very able book, The International Judge, which I read with high interest and appreciation.
It's worth recalling that at the time that Andrew Carnegie was establishing this council and so much else, the peace movement of that day, of which he was a leader, was convinced that the way to prevent war was through international arbitration and adjudication. That was the great theme of the leaders of the peace movement of 1890-1910.
Carnegie's lead adviser in these matters, Elihu Root, who was secretary of war, secretary of state, senator from New York, and a titan in legal practice of his day, was very much of that view. In fact, he served on the League of Nations committee that drew up the statute of the Permanent Court of International Justice, which operated from 1922 to 1940, and is the immediate predecessor of today's International Court of Justice. Indeed, loosely speaking, one can speak of those two courts together as the World Court. The International Court of Justice took over the premises of the Permanent Court. It took over its staff. It took over its statute, which is virtually unchanged—a few changes, but not many. It took over its traditions. The cases which the Permanent Court adjudicated between 1922 and 1940 are cited just as frequently in the arguments of counsel before the court today as today's court is.
So in a sense, I think it's not right to start with the International Court of Justice in 1946, but to think of the World Court operating from 1922 onwards, apart from the interlude of the Second World War—operating, incidentally, in the Peace Palace that was built with funds that Carnegie provided.
It's striking that the Permanent Court of International Justice, which was the first international court in the history of mankind—there had been episodic arbitrations, quite a number, and claims commissions, but there had never been a court in the whole history of the world before the court in 1992. In fact, there had never been a world diplomatic conference before the first Hague Peace Conference of 1899. That was the first diplomatic conference, even, in the history of the world.
When you take that sort of elemental fact into perspective, one realizes that international institutions are essentially a recent phenomenon, which understandably remains rather fragile, as Professor Terris has rightly put it.
That court functioned with very marked success. It defeated the hopes of its progenitors, because it certainly didn't prevent the Second World War. But it did adjudicate a substantial number of important disputes. All of its judgments were followed. It demonstrated that an international court could work.
In the process of adjudicating those cases, it developed the law in very significant ways. For example, there was a case in the 1920s in which the court held that the purpose of treaties could be to invest individuals with rights which they could assert on an international plane. That's commonplace today, but it was revolutionary then.
So when, after the Second World War, the United Nations was set up to replace the League, while there was no serious thought of maintaining the League as such, it was taken for granted that the World Court would be maintained. And it was maintained, with a change of name and a few tweaks of its statute. That remains the senior court of international courts, by far. All the others that we have referred to today or are described in The International Judge are relative newcomers on the scene, and most of them have a very specialized and comparatively narrow jurisdiction. Nevertheless, it can be a very important jurisdiction.
There has been some mention of U.S. reaction to the courts. Let me say a word about that.
The U.S. record has been a very ambivalent one. While the United States was a principal proponent of having a world court, the United States, of course, did not join the League of Nations. If it had, that wouldn't have automatically made it party to the statute of the court, because that court is different from the current court. All members of the United Nations are automatically parties to the statute of the International Court of Justice, while in the League, a state had separately to ratify the statute of that court. In fact, every president from Harding on favored ratification of the statute. But it wasn't put to a vote in the Senate until Roosevelt's tenure. I think it was 1936.
Then the Hearst press mounted an enormous campaign about the dangers of subjecting the United States to the rulings of foreign judges. That campaign was enough to block the two-thirds vote that was required in the Senate for the United States to adhere to the statute. It never did, though there was an American judge on the court throughout its history.
When the UN Charter came into force, and hence the statute of the current court, the United States did adhere to its compulsory jurisdiction, generally, subject to a famous enervating reservation, the Connally reservation, which provided that disputes that were within the domestic jurisdiction of the United States, as determined by the United States, would not be within the court's jurisdiction. That led to a great deal of controversy, even consternation.
Nevertheless, despite this record of ambivalence, the United States has been very heavily engaged in the work of the court. My impression is that there has been no state that has been involved in more cases before the court than the United States, and the United States remains party to quite a number of treaties that provide that disputes arising under those treaties shall, at the instance of a party, be submitted to the court.
A word about the proliferation of international tribunals. In the last 30 years or so, quite a number of new courts have been set up. The European courts are rather older. They go back, really, to the formation of what today is the European Community, after the Second World War. Those are quite unique courts. They are operating in an integrating community of a limited, though expanding, number of states. Those courts have been enormously and constructively influential in developing the European Community as it has developed—not only the European Community as an institution, but in the sphere of human rights. The European Court of Human Rights also has a record of very considerable accomplishment.
But those courts are regional courts which are not duplicated worldwide. They are aspirations which, in some measure, have had a start in the Americas, but there is a long way to go to match the work of the European courts. Other courts of more universal reach have specialized mandates. A few of them are very significant, like the World Trade Organization Appellate Body.
The International Tribunal on the Law of the Sea has yet, really, to get going. It has not had a significant case as yet. It has largely been concerned with springing ships that are arrested in the waters of one state quickly. And that is a useful service.
It came about by a fluke, actually. The World Court, in 1966, rendered a judgment finding that Ethiopia and Liberia lacked standing to maintain a case against South Africa in respect of the practice of apartheid in South-West Africa, a territory then administered by South Africa, but not part of South Africa. It had been a League mandate and became a UN trusteeship, though South Africa never recognized the UN's position.
That judgment was extraordinarily controversial and led to much denunciation of the court in the UN General Assembly. It was a judgment carried by the narrowest of majorities by the casting vote of the president. The court was split absolutely down the middle. In such a case, the president has two votes. He voted with the group that believed that Ethiopia and Liberia lacked standing.
Three years later, negotiations were launched for a new Law of the Sea Treaty that would complement the treaties earlier concluded under UN auspices and revise and comprehensively update them. The United States took the lead role in calling that conference. It was convinced that such a treaty could not be effective without provision for international adjudication of disputes that would arise under the treaty. But it was also convinced that the World Court would not be invested with that authority by the states negotiating the third UN Treaty on the Law of the Sea, because that court was so unpopular in the wake of the South-West Africa cases, in Africa and in other developing countries.
So it proposed the creation of a new tribunal, which has come to be known as the International Tribunal on the Law of the Sea. That was strongly opposed by the European states. But once that genie was out of the bottle, it was never possible to put it back in. The reputation of the World Court generally revived. In fact, now you find among its biggest clients the states of Africa. But there is the International Tribunal on the Law of the Sea, which essentially never needed to be created, because the World Court had a distinguished record of dealing with law-of-the-sea disputes and has continued to do so. Nearly all of them are still brought to the World Court, but eventually the International Tribunal on the Law of the Sea will get cases and begin to operate more effectively. One hopes that it will.
Our colleagues have stressed the importance of the individual qualities of the judge. That, of course, is obvious, but no less true. The present processes for choosing judges, and in particular for electing judges, insofar as they are elected, don't really test those qualities. The elections are a political process. The process of nomination is essentially national. What goes into that is opaque and not really subject to effective scrutiny or evaluation by the electors, who treat the election of judges in the log-rolling way that UN elections tend to operate in.
Given that background—I can't speak for other courts, but I can say something about the International Court of Justice—the quality of the judges is, on the whole, pretty high. It is a UN organ, and for a UN organ, I would say the quality of intellect on the court is high, which is not to say that every judge is stellar. But most of them are really very good and most of them can make a significant contribution to the work of the court.
The question, which the authors deal with much more fully in their book, of the integrity of judges is a more difficult one still. My impression is that the electors haven't the faintest idea of whom they are electing in that regard. Of course, it varies very much, too. It's so much a question of personality.
Let me stop with these rather scattershot remarks. I would be happy to try to answer your questions.
JOANNE MYERS: I would like to thank you very much, especially you, Judge Schwebel. You talk about whether or not the judges are stellar, and I would say, if you represent them, they are stellar. I thank you very much.
I would like to open the floor to questions.
Questions and Answers
QUESTION: Mr. Romano, you mentioned a whole bunch of statistics before you introduced the other guests. I was curious: What is the number of judges from the Middle East?
CESARE ROMANO: I don't think that when we classified them, we broke Asia down into the Middle East. I would be surprised if we were talking about, out of the 215, more than six or seven, probably. Yes, it's small.
But again, since Asia is only 16 percent of the whole, then the Middle East is just a fraction of that.
DANIEL TERRIS: There are certainly some from Egypt, some from Jordan—not from Israel, which has mostly to do with Israel's isolation within the UN system.
STEPHEN SCHWEBEL: The current vice president of the court is a Jordanian national. Egypt has had a judge on the World Court for much of its history, though it doesn't at the moment. There is a Moroccan and there is—
CESARE ROMANO: But what I wanted to say is that, for instance, Shabtai Rosenne, who definitely has all the qualities and the knowledge to be one of the judges of the International Court of Justice, because of his nationality—being an Israeli—never managed to become one. That's probably one of the failings of the system, not being able to get someone like him on the bench.
QUESTION: Is there any procedure to disqualify or remove a judge, for any reason?
DANIEL TERRIS: Different courts have different procedures. There is a whole range here. Generally, the courts have procedures for removing a judge if there is an egregious breach of law or ethics. What's more difficult is if there is something in a kind of gray area. Sometimes then it's difficult because usually that matter has to be resolved by the other judges who are that judge's peers on the bench. In any professional situation, it's difficult to sit in judgment on your peers with whom you are working day in and day out.
On the other hand, you don't necessarily want to have too large a structure of oversight, because then you are going to have many opportunities to interfere with the independence of judges. So this is one of those difficult situations.
I will say there was a very notorious and interesting case involving the Special Court for Sierra Leone, which is a court established to try the perpetrators of the civil war in West Africa. A judge on that court, who was actually serving as president at the time, had failed to reveal—and it was not discovered until he was already on the bench and sitting on a trial—that he had written a book in which he had more or less explicitly called one of the groups that was appearing before the court war criminals. That is to say, he had already more or less prejudged them in a public sphere.
He actually declined to recuse himself. It actually took a collective effort from the other judges on the bench, who, in that instance, were able to get together and, through a series of complicated maneuvers, remove him from that case and, in fact, maneuver him so that he was no longer president of the court.
In that case, the other judges on the court were able to act in a collective manner to preserve the integrity of the institution.
CESARE ROMANO: I would also like to point out the fact that international courts and tribunals, by and large, do not fare any worse or any better than most supreme courts of various states of the world, because these supreme courts also have mechanisms to guarantee their independence from the other powers.
For instance, let me ask this question. How many U.S. Supreme Court justices have ever been impeached and eventually left the bench? I don't think any.
PARTICIPANT: Abe Fortas.
CESARE ROMANO: One?
PARTICIPANT: I believe Chase, back in the 1800s.
CESARE ROMANO: So in 200 years, we can count them on one hand. Have they all been such angels that—
PARTICIPANT: Absolutely, especially right now.
PARTICIPANT: There was also a guy who resigned, who worked in the Johnson administration, Goldberg.
QUESTION: I suppose the rules change, depending on the court. But in situations, say, in the World Court where you have two states and a judgment against one of the states and that state refuses to abide by the judgment, what happens? Have there been instances where that has taken place?
STEPHEN SCHWEBEL: Yes, it has happened. It's infrequent. There have been, I believe, three or four such cases. Iran did not comply with the judgment of the court in respect of the hostages it was holding—and, in fact, has not complied to this day, because it's still an occupation of the U.S. embassy premises. The United States did not comply with the judgment of the court in the Nicaragua case involving the Contras and the like.
There is one other that escapes me at the moment.
CESARE ROMANO: Iceland even refused to appear before the court.
STEPHEN SCHWEBEL: Yes, Iceland refused to take account of the court's proceedings in cases brought by the U.K. and Germany.
But they are quite rare. The record of compliance with judgments of the court is very high.
In the case of noncompliance, the winning party can request the Security Council to take measures to enforce the judgment. Nicaragua tried that, but the United States vetoed the resolution. So it didn't go very far.
CESARE ROMANO: There is an interesting trend in international courts, in the sense that historically—for instance, the case of the World Court—the jurisdiction of the World Court relies on consent directly expressed by the states. That can be either done ad hoc, case by case, or by inserting a clause in a treaty that gives jurisdiction to the court.
But this is the old model. There is only one other court that still has jurisdiction determined on that basis. That's the Inter-American Court of Human Rights. All other international courts nowadays have compulsory jurisdiction. That is to say, once a state is party to the statute, it is not anymore a matter of expressing consent, but they are de facto automatically subject to the jurisdiction of that.
It's very interesting. The compliance record of compulsory courts actually is not worse than those that are optional, but it's even better. There is an argument here that once states are forced under constraint within the system, they tend to play along with it. Actually, if you have a system that allows them flexibility and a way of pulling out, that creates an inducement for their actually backing out and not complying.
These are only my personal, legal-scholar speculations.
QUESTION: I have a rather biased question. I think it was you, Mr. Romano, who suggested that the disproportionate number of judges from Europe had to do with location of the courts, if I understand you correctly—
CESARE ROMANO: The fact that, for instance, there are two very large courts. The European Court of Human Rights, by itself, employs 46 judges. The European Court of Justice alone has 54. So the two together make 100 judges, which is almost half of the total.
QUESTIONER: Right. Having said that, I was thinking in a different direction. Would you be an advocate of what we, the Dutch, are suggesting, a concentration of international courts in one location—that it has advantages, from practical visibility, and maybe also from the point of view of principle? We consider The Hague as the legal capital of the world because of these arguments, both from a more practical and more principled nature.
I would like to hear your views on that.
CESARE ROMANO: Maybe I should give some background. Many of these international courts are located in The Hague. This has an historical reason. The conference that Judge Schwebel mentioned that started the whole process of international adjudication in 1899 took place in The Hague itself. So that has become over time the city hosting most of these tribunals.
Actually, I just finished a book on U.S. attitudes towards international courts and tribunals. I don't know how many of you know, but there is a statute in the United States that allows the president of the United States to use all necessary means, including force, to free U.S. citizens who have been surrendered and are in detention at the International Criminal Court. People in NGOs call it "The Hague Invasion Act," which basically gives the power of the president to use force to invade The Hague.
Big kudos to the Dutch government, that they are willing to go to war with the United States, to host as many international tribunals as possible on its soil.
Yes, concentration has definite benefits. In our experience, we saw that many of these judges who reside in The Hague tend to have a social life together. It's very easy for them to meet regularly. It's very easy for them to consult. This creates eventually, over time, this epistemic community that we describe in the book that has beneficial effects on the overall coherence of the international judiciary.
On the other hand, delocalization has also some benefits, especially when it comes to the question of criminal courts. The problem of having the International Criminal Court in The Hague is that when it has to adjudicate cases that are stemming from things that happen in Uganda, which is a 10-hour flight away, what kind of sense of justice do people in Uganda feel for this court that sits very remote from them, and they have no chance of judging things done in their name?
In this sense, probably hybrid courts that tend to be localized in a place, like the Special Court for Sierra Leone, provide advantages.
DANIEL TERRIS: But the Special Court of Sierra Leone moved its most prominent trial, Charles Taylor, to The Hague, because The Hague provided a safer environment in which to conduct it.
CESARE ROMANO: Exactly. So there are both sides at play here.
QUESTION: I would ask the panel, to what extent are there ex parte contacts between the judges and their home countries while cases are being litigated?
STEPHEN SCHWEBEL: I can only speak knowledgeably of my own case, where there were none. The United States government was punctilious in its relations with me. One of the few calls I had was after a case rendered judgment, and I was informed by a State Department official that before the judgment had been rendered, it had been leaked and the country concerned had asked the State Department to exert its pressures upon me, which, of course, they didn't. They only told me about it after the event.
But I cannot speak for my colleagues. I simply don't know. My guess is that there are no such pressures, which isn't to say that everybody is equally objective. But there probably needn't be such pressures. If a judge wants to decide in a particular way for non-objective reasons, he won't normally need instructions to do that, I wouldn't think.
This is speculation.
DANIEL TERRIS: I will say that the judges that we spoke with for our book uniformly agree with Judge Schwebel on this. Cases of direct interference, while not unheard-of through the grapevine—it's not like nobody had ever heard that something might have been said—were very rare. Even in cases where there was some suspicion that it might have happened, the collective nature of these courts served to marginalize the influence of any particular thing.
So I think judges tend to see that—they view other kinds of threats to their independence and the perception of it in institutional arrangements, in things like their salaries and their potential for earning after they leave the court or issues of reelection. But direct pressure, direct calls from the ambassador or the minister of justice do not seem, at least, to be a major problem.
CESARE ROMANO: Let me give you a personal anecdote. Sometimes I notice that we tend to judge international courts by the very same ethical standards whereby we hold domestic courts, without understanding that international courts are very different beasts that operate in different contexts, which therefore might warrant departure from the standards that we know.
For instance, in the first case that was brought before the International Tribunal for the Law of the Sea, I happened to be one of the counsels of the plaintiff. I went there, and it just happens that several of the judges that were there have been my professors. We were doing the job in a very professional way. They are the judges; we are the counsel, the parties. Then the hearing is over.
As soon as the hearing is over, they come down from the bench and say, "So how are you?"
"Fine, thank you, sir."
"Do you have any plans for lunch?"
"Let's go and have lunch together."
Half of my brain was saying, this is amazing. The counsels go out for lunch with the judges five minutes after the end of the hearing. This is unheard-of. Anyone would be disbarred.
On the other hand, this was my professor. They know me; I know them. We are not going to talk about the case anyway.
Maybe also the fact that there was a direct communication between the counsels and the judges helped. You have to remember that, especially in cases of certain international tribunals, the whole purpose of the exercise is to bring about a settlement of a dispute. That can be greatly facilitated if there is a sense of connection and understanding between the judges and the parties.
So we have to keep in mind that we cannot judge courts by the same standards internationally and domestically. They are different beasts. You assume that domestic standards are inherently better than international ones.
QUESTION: In bringing cases to the courts, do both sides need to or one? How are court cases brought to the court?
CESARE ROMANO: How are they brought?
QUESTIONER: Yes. Do both sides have to agree or one side, or it's brought up in the United Nations? What is the process?
CESARE ROMANO: That depends on what kind of court we are talking about. For instance, the court where Judge Schwebel was president, cases reach there because there is an agreement between the parties to bring the case or because they have accepted the jurisdiction of the court beforehand, by making a general declaration to this effect.
In other cases, certain cases of regional courts that have more administrative functions, like the European Court of Justice, there you have individuals that bring cases, either the Community institutions, like the Commission, or one Member-State for noncompliance with European Community legislation.
In criminal tribunals, it's the prosecutor that decides to indict and the prosecutor brings the case against the defendant.
So depending on what flavor of international court we are talking about, there are different avenues that can be used to reach them. But that changes dramatically from court to court.
JOANNE MYERS: Do you have anything more to add before I conclude?
DANIEL TERRIS: I would just like to conclude with a brief quote from one of the judges, which I think gives a nice historical flavor.
This is from a judge on the European Court of Human Rights, from Ireland. Speaking of that kind of historical dimension and thinking about this institution's mission, thinking about building institutions that build peace and substitute for war, despite the PCIJ's failure to prevent World War II, John Hedigan of the European Court of Human Rights says, "A hundred years ago, my grandparents on both sides were just young married people. They were not very well-off people, but they were comfortably off, middle-class Irish. They must have looked forward to the 20th century with tremendous optimism. Everything was happening—inventions, great developments in social justice—and nobody could have foreseen the catastrophes that were going to befall Europe in the first half of the century.
"If we succeed in spreading our gospel about international courts across the whole of Europe, convincing people about the importance of the rule of law, the rights of citizens as individuals, not as members of communities, it becomes more and more difficult for governments in Europe, and eventually around the world, to manage to persuade their people to go to war with one another. That's ultimately, for me, the main aim of the whole thing."
JOANNE MYERS: Professor Terris, Judge Schwebel, Professor Romano, I think the verdict is out that we found this all to be a very fascinating discussion. I thank you all for joining us. I invite you all to continue the conversation.