Gentian Zyberi is a defence Lawyer at the International Criminal Tribunal for the former Yugoslavia
This is a reply to the post by Marko Milanovic entitled ‘Judging Judges: A Statistical Exercise’. His starting point is a paragraph by Andrea Bianchi’s post ‘On Certainty’ which speaks about certainty in international law, based on the ICJ’s decision in the Jurisdictional Immunities of the State case. As Bianchi notes in his post, the ICJ is always very considerate of the systemic effects of its own rulings. Indeed, it was highly unlikely that the Court would uphold the claim that international law allows individuals to seek redress against a State before the municipal courts of another State for human rights violations. Especially as regards humanitarian law violations committed during the Second World War. Admittedly, as Bianchi adds, this would have opened the door to a flow of litigation before municipal courts that might have disrupted the whole system. However, as Bianchi observes, the problem is that the Court overdid it, by making sweeping statements on the scope of immunities under customary law, by downplaying the right of access to justice under international law and by adding remarks that may have serious repercussions on other related fields. Similar criticism has been leveled at the other immunity decision of the Court rendered in the Arrest Warrant case in 2002.
But the paragraph in Bianchi’s post which triggered Milanovic’s post is the following:
Finally, a word of praise for Judge Cançado Trinidade (who issued a dissenting opinion in this case) is in order. His lengthy opinions and his weltanschauung are often looked down on or frowned at. In fact, Judge Cançado is long engaged in an attempt to acculturate the international judicial bodies in which he seats and, more generally, the epistemic community of international lawyers. Suffice to cast a glance to the background, academic and/or judicial record of his fellow judges to realize how on certain fundamental issues at the ICJ he does not even belong to a minority: he is almost completely isolated. I trust he has realized by now that The Hague is a much colder place than San José. Yet his function remains fundamental. One could paraphrase Voltaire and say that ‘If Cançado did not exist, it would be necessary to invent him’. Not so much for me or for any other more or less established member of the profession, but for all those students who approach the study of international law and want to believe in the redeeming force of human rights and universal justice for a better world. Here is another hand. Of this, I am quite certain.
Taking this a starting point Milanovic tries to answer the more general question: how exactly should we measure the effectiveness of a judge, particularly a judge on the ICJ? He provides statistics on the three-year work of Judge Cançado Trinidade. The criteria Milanovic chooses to measure effectiveness include an inquiry on what is the audience that the judge should seek to persuade and in what manner, a judge’s output in terms of individual opinions, and whether the judge is in the majority or not. From the tenor of his arguments it would seem that for Milanovic an effective international judge (at the ICJ) is one that looks inwards, refrains from writing long individual opinions because that is useless besides being costly, and is a conformist when in the minority! Read the rest of this entry…