With the ICTY turning 20 this year, perhaps the time has come to pass judgment on it. Or is it judgement? (Preemptive note to readers – this post discusses trivia, and does not claim to engage in any legal analysis, let alone any serious analysis.) As an avid consumer of the ICTY’s case law, one thing has really been bugging me over the years, and the time has come to raise it openly (and no, it’s not the dubious acquittals of a number of bad guys who should have spent the remainder of their days in prison). What’s this, you ask? It’s how the ICTY persists in spelling ‘judgment’ as ‘judgement’ in all of its official documents, including, well, their judgments – so it’s the Blaskic judgement, the Perisic judgement, the Gotovina judgement. Oh, how I hate that, I really do.
Now you may ask yourself, come on, isn’t Marko overreacting (as usual)? Isn’t ‘judgment’ without an ‘e’ the American spelling, and ‘judgement’ with the ‘e’ the British spelling, and isn’t the ICTY just using the British variant? Wrong! Wrong, wrong, wrong. It’s true that in common usage in the US ‘judgment’ is used almost exclusively, while both ‘judgement’ and ‘judgment’ are used in the UK, with the former being more prevalent. However, in the British legal context the spelling ‘judgment’ is the conventional one and is used almost exclusively; thus the UK Supreme Court delivers judgments, not judgements. In other words, a proper, ‘public’ school and Oxbridge educated British lawyer would modestly write of himself as being indeed possessed of a fine and discerning judgement, but that today he read a jolly good judgment by Lady Hale or Lord Bingham or whoever. (For sources and discussions of the whole judgment/judgement thing, see here, here, here, and here).
I can thus only say that the ICTY’s use of ‘judgement’ to denote its own decisions is a complete and utter travesty (although I wouldn’t go so far, as I’m sure my friend Kevin Heller would, to label it as hypocrisy), since even British lawyers wouldn’t use that particular spelling in this particular context. More Catholic than the Pope, more English than the Queen, as it were. So how did this travesty get going?
Just like so much of international criminal law, it started off in Tadic. The Trial Chamber, presided over by Gabrielle Kirk McDonald, quite sensibly called its May 1997 decision convicting Dusko ‘Dule’ Tadic a ‘judgment,‘ and did the same thing in its July 1997 sentencing judgment. The ICTR’s first decision, on the other hand, Akayesu in 1998, was named ‘judgement.’ As for the Appeals Chamber, well, once it got its hands on the Tadic judgment things went downhill from there. It first gave an appeals judgement in July 1999, to which Judge McDonald valiantly responded with a revised sentencing judgment. The Appeals Chamber unfortunately followed up with a couple of other judgements, even though it somehow managed to let a judgment slip through. The rest, as they say, is history, with some variant of stare decisis preserving ‘judgement’ in the ICTY to this day.
But what caused this travesty in the first place? Was it the late Nino Cassese’s proverbial judgemental activism? Was it Judge Shahabuddeen who shahed this one up? Or was it the pernicious influence of the French ‘jugement’? Only an insider could tell us (please do, and please do so in the comments – much obliged). Happily, in yet another example of the fragmentation of international criminal law, other international criminal courts and tribunals, such as the ICC and the SCSL, issue judgments and no judgements (or at least I hope so). Not to mention that the ICJ and its predecessor always delivered judgments, in good form, and so have the ECtHR, the Inter-American Court, and ITLOS.
The ICTY’s idiosyncratic judgements are now part of its legacy. But one of the main sources of my annoyance will continue to live long after the Tribunal closes its doors – how is one actually supposed to cite them outside the ICTY itself? As ‘judgments’ only and exclusively, in keeping with standard English usage everywhere but there? In the original, as the Tribunal intended, thus swallowing whole and perpetuating its violation of the English language? Or in the original ‘judgement’ but with a ‘sic’? Inquiring minds want to know (as I’m sure do all the pedants).