This is one of the issues that is perhaps the most challenging for judges who come to international courts from a national context. It is particularly important that a judge understands the political context in which they are judging. There is a tendency to say—and I have heard many colleagues at the ICTY and International Criminal Court (ICC) saying—“I am going to keep completely out of the politics because that's none of my business, I'm here to just to do my judicial role.” With great respect I think that is a fundamental mistake, because the reality is if a judge is going to defend her independence on an international court, she really has to understand the political context in which she is defending it.
In an international system you have the same tension as in a national system: the courts are funded by governments. But in a national system there is a whole structure generally, and practices that are in place, to provide checks and balances that ensure the independence of judgments is protected, despite the relationship that exists in terms of funding and other administrative matters. At the international level (particularly in treaty-based courts), that structure simply does not exist or it is very minimal. The reality is that the defense of independence falls heavily on the shoulders of the judges themselves, and as a judge you need to understand that because you have to carefully and fiercely defend it. In this political context, that means not only defending your independence, but also making sure there is no perception that your independence is being interfered with. As I often said when I was ombudsperson for the Al Qaeda Sanctions Committee, which was quasi-judging, it was not that I was operating in a context where the rule of law and independence was not understood. Rather, it was not known. So, I think understanding those fundamentals is very important.
At the same time, and this is a misunderstanding that is very common, independence of judges does not mean that they are unaccountable. Judges are accountable and at the same time independent. It is perfectly appropriate that the states that are funding these courts are questioning the use of expensive courtroom time, the lack of use of a courtroom, the scheduling, the length of proceedings, and duplication of process. Judges seem to rail against those kinds of questions and you hear them rely on their independence in defense against these question. But these questions have nothing to do with independence—they relate to accountability. Judges are responsible for the efficiencies of the court and how they use the resources in chambers. That is a reality that you do not experience as a judge as much in a national context.
Internationally we have some filters for maintaining efficiency, like a registry. At the ICC, we have a very important separate organ of the Presidency to deal with some of these issues. But none of those filters are going to work if you have judges who are functioning with the perspective that, for example, they can order a site visit tomorrow just because they think it is justified on the facts, without taking into account the context in which they are judging.
Lastly (and this is a whole nuanced aspect of judging at the international level), it is really helpful, not for you individually as a judge, but for the institution, if judges have a good and appropriate relationship with the states parties. If you have an opportunity to have a chat with some diplomats about why it may be difficult to keep to your trial schedule, about how you were all set to hear a very important witness who did not come back to his hotel room the night before, if you are able to explain to them how taxing the redaction of documents is, how time-consuming it is to put in place special measures for protections of witnesses, if you are able to explain the importance of site visits, those are all things that then help you as an international judge in getting states to invest in the institution. These states will have confidence in the institution and ultimately will have the confidence to cooperate with the court and have the trust in the proceedings. The judges are the emissaries of the court.
Different Regimes of International Dispute Resolution
Question: Can you discuss the influence that international commercial arbitration may have had, or continues to have, on state-to-state disputes?