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Home EJIL Analysis Judgment or Judgement: What Has the ICTY Wrought?

Judgment or Judgement: What Has the ICTY Wrought?

Published on October 29, 2013        Author: 

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).

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18 Responses

  1. I will use “judgment,” now and forever. If the ICTY wants to hold me in contempt, let them. I will not bow to their hypocrisy!

  2. I think the title of your post could have read “what HATH the ICTY wrought”, to stay in tone with its content…

  3. Eirik Bjorge Eirik Bjorge

    I wonder if this judgment isn’t a little rash. Sir Hersch Lauterpacht used ‘judgement’ where you would only accept ‘judgment’; the same is true of many others. A quick search reveals that among them one finds towering figures such as Hugh Thirlway, Gavan Griffith QC, and former Lord Chancellor Lord Irvine of Lairg—all of whom strikes one as nothing if not ‘Oxbridge educated British lawyers’.

  4. Marko Milanovic Marko Milanovic

    Kevin, I think I’ll follow your lead!

    Dov, you’re right, ‘hath’ would have had the real King James kind of flavour.

    Eirik, that’s a fair point, so let me expand on this a bit. The problem with any discussions of how language is or should be used is the benchmark by which we measure what use of the language (here spelling) is correct or not. Prescriptivists would focus on rules, descriptivists on common usage (note how very lawyerly the linguists can be), and others will dispute the very idea that a particular use of language can be correct or incorrect. If I’d have to label myself, it’d be as a descriptivist with latent prescriptivist tendencies that tend to erupt every once in a while.

    With that in mind, my claim was that use of the spelling ‘judgement’ when refering to a judicial decision in formal legal contexts is contrary to the common usage in both the US and the UK, even though in the UK that spelling is used more frequently than ‘judgment’ outside this context. So when you say X or Y used ‘judgement’, and they were very eminent lawyers, you have not really disproven my argument about common usage. There will always be people who depart from the conventional approach, especially when, as is the case in the UK, the two spellings are otherwise perfectly valid variants.

    If you want more support for this other than the extracts from the OED or the discussions I cited to above, you can do a search of BAILII of all decisions in England and Wales. I just did so, and ‘judgment’ gets 47345 hits while ‘judgement’ gets 4030. That’s a ratio of about 12:1, and again this is in a country where ‘judgement’ is otherwise more prevalent.

    You can of course argue that ‘judgement’ is nonetheless a legitimate variant (although I’d ask you when it would stop being one – 20:1, 50:1, 100:1?). But in the even more specific world of international law that ratio is probably even higher than 12:1, and not just because of the American influence. Again, no other international court that I’m aware of uses that spelling. The only time I personally encounter it regularly is in ICTY/R decisions or by reference to them. And when you have that level of disparity, it becomes very annoying even at a purely practical level (i.e. how to cite them).

  5. Caio Weber Abramo

    But wait, are you talking about Tadic, Tadić, TADI] or Tadi}?

  6. Marko Milanovic Marko Milanovic

    Oh, Caio, let’s not even go there. I’m after all a Milanovic who’s lost his ć, and I imagine word processing must have been really challenging back in 1997.

  7. Andrea Carcano

    I think that a possible explanation is to be found before Tadic in the Statute of the ICTY and in the report of the Secretary General(3 May 1993 – S/25704). In both cases, if I am not mistaken, it is written judgement (double ‘e’) and not judgment. See also as concerns the ICTR UNSC Res 955/1994.

  8. Marko Milanovic Marko Milanovic

    Andrea, that’s a great spot, many thanks!

  9. “A Milanovic Who’s Lost His ć”

    The perfect name for a children’s book about an idealistic young Serb whose love for international law allows him to overcome his many handicaps in life and blossom into a beloved member of the scholarly community.

  10. RJ

    typical first World problem. Btw, I was surprised to see that you deleted my meme; took me about 10 seconds to make it, all for nothing. Some sense of self-deprecating is always helpful, especially in academia!

  11. Joost

    Dear Kev,

    There are no words to express how your comment makes me feel.

    Joost

  12. Joost

    Now, on a more serious note, I think Marko is deadly right: from a linguistic point of view, misusing the word judgement is as barbaric as the atrocities committed by the Serbians convicted by the ICTY. I don’t think it’s overreacting at all.

  13. Marko Milanovic Marko Milanovic

    Kevin, if only Maurice Sendak was still with us! Though I’d have to think hard to find what the ‘many handicaps’ were, other than location, location, location.

    RJ, I honestly don’t know what got deleted – our system probably classified your 10-second meme as spam.

    Joost, is this the very first time you’re lost for words? Oh, wow. Btw, I was meaning to ask – are you the same dude as https://twitter.com/not_abi_saab ? Compliments on the Men’s Health cover.

  14. Joost

    Dear Marko,

    Unfortunately not. This guy has clearly more sense of humour than I, even though I’d like to think that I’m not far behind.

    PS. I wasn’t lost for words. Just trying to keep my lunch down.

    Joost

  15. […] comment on what they don’t do. I think it’s fitting, on the date that the Judgment (or Jugdgement) in the Seselj case was meant to be delivered to ask a simple question: what is happening […]

  16. Iain Scobbie

    When I was a PhD student supervised by Eli Lauterpacht, he reprimanded me for spelling “judgment” as “judgement”. He impressed upon me that “judgments” were delivered by courts, while “judgements” were “those of the Lord”. Accordingly, Eirik, I refuse to believe that his father ever knowingly used “judgement” when he really meant “judgment”.

    There is, trivia point ahead, a precedent for international-ish courts to use “judgement” – it was used by UN Adminstrative Tribunals, which is possibly why you might find Lauterpacht-the-Elder and Hugh Thirlway using “judgement” in reference to awards made by those tribunals. It was the spelling adopted by the ICJ (no doubt with sad shakes of the head) when discussing these awards in its jurisprudence.

    And Marko, I doubt if Tom Bingham is spelling anything these days, alas. He is missed.

  17. Eirik Bjorge Eirik Bjorge

    Many thanks for your excellent post, Iain. I hope the link below works. I fear that The Function of Law in the International Community is full of “judgements” — but then again don’t we all sometimes ascribe to the International Court of Justice and its predecessor divine qualities?

    http://books.google.co.uk/books?id=w6WZmthVY3gC&printsec=frontcover&dq=hersch+lauterpacht&hl=en&sa=X&ei=6-h5UoTSMImUhQemm4HQAw&redir_esc=y#v=onepage&q=judgement&f=false

  18. Iain Scobbie

    Dear Eirik,

    I am shocked by the evidence you present, and have had to reach for my smelling salts to revive myself. As for the divinity of the ICJ and PCIJ, are we talking heaven or hell (note, not Heller)?