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BIIJ 2007
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Brandeis Institute for International Judges 2007

Independence and Interdependence: The Delicate Balance of International Justice

23-28 July 2007

Bretton Woods, New Hampshire, U.S.A.


The Brandeis Institute for International Judges (BIIJ) was held from July 23 to 28 in Bretton Woods, New Hampshire. The fifth institute to be held since 2002, BIIJ 2007 brought together fifteen judges from nine international courts and tribunals to discuss issues of particular relevance to their profession and institutions. The aim of the BIIJ is provide a space and time for judges sitting on international courts and tribunals to meet and reflect, discuss issues of mutual interest, generate ideas that enrich their work, and move toward developing policies that strengthen their standing. Each institute is the subject of a report that summarizes the topics of its sessions and the ensuing discussions that take place among participants.

biij2007group

Participants at the 2007 Brandeis Institute for International Judges in Bretton Woods, NH


The institute theme for 2007 was "Independence and Interdependence: the Delicate Balance of International Justice." Each of the institute's sessions explored, from various perspectives, the ways in which international judges and their institutions are simultaneously connected to outside entities and yet remain independent in their judicial function.

The first session, entitled "International Courts and their Relationships: the Challenges of Interdependence," was led by Stephen Schwebel, former judge and president of the International Court of Justice (ICJ). Taking into consideration both judicial cases and difficult situations that have arisen in courts over the years, participants were asked to reflect upon the extent to which their institutions feel a need to defer to the bodies that constituted them or to states parties, the effect of such relationships on the policies and practices of their courts, and whether such relationships have consequences for their independence as judges.

Institute co-directors Richard Goldstone, retired justice of the Constitutional Court of South Africa, and Linda Carter, professor at McGeorge School of Law, led the second session, entitled "The Role of Precedent in the Decision-Making of International Judges." Judges wrestled with the thorny topic of how international courts deal with one another's jurisprudence and whether there needs to be a treaty, or perhaps a less formal understanding, to regulate the precedential value of decisions among courts interpreting the same legal standards. The recent ICJ decision on genocide in the Balkans (Bosnia and Herzegovina v. Serbia and Montenegro, 2007), which differs in some of its findings from cases decided earlier by the International Criminal Tribunal for the former Yugoslavia, was a point of departure for discussion of an issue that could become increasingly difficult as new international courts become established and produce their own bodies of jurisprudence.

The third session represented an innovation in the format of the BIIJ. Participants divided into break-out groups with other judges serving on similar kinds of courts in order to address topics of particular relevance to their institutions. Participants from the inter-state dispute courts represented (International Court of Justice, World Trade Organization Appellate Body, and the Caribbean Court of Justice) chose to discuss how national law is treated in international law disputes. Judges from the criminal courts in attendance (International Criminal Court, International Criminal Tribunal for the former Yugoslavia, International Criminal Tribunal for Rwanda, and the Special Court for Sierra Leone) addressed various issues of procedure and courtroom management. Judges from the African Court of Human and Peoples' Rights, which is newly established and not yet operational, took the opportunity to question their experienced peers from the European Court of Human Rights about the best manner in which to screen cases to come before the court, distribution of the anticipated caseload among judges, judgment writing, the role of the registry, and many other issues of a practical nature.

The perennial question of ethics in the judiciary was addressed in the fourth session, "Integrity and Independence: the Shaping of the Judicial Persona." Led by Gil Carlos Rodríguez Iglesias, professor of law at the Universidad Complutense de Madrid and former judge and president of the European Court of Justice, this session addressed questions such as the following: Should there be generalized standards for independence and impartiality across international courts or should each institution establish its own? What are the core features of judicial integrity? How do existing procedures for nomination, election, and appointment of international judges affect public perceptions of their integrity and independence? How should the balance between independence and accountability of judges be drawn? Professor Rodríguez Iglesias presented some of the challenges to the maintenance of the judicial persona that exist in the international sphere. BIIJ participants responded with examples of both the past difficulties and current strategies of their own institutions as they strive both to protect and project the integrity and independence of their judges.

The important topic of how international courts deal with the media was led by Edward Lazarus, who consults regularly with U.S. courts on their public image and how it can be enhanced. In "International Courts and the Media: the Dilemma of Public Scrutiny," participants were asked to think about how their courts currently interact with different organs of the media and how public perceptions can impact the effectiveness of international judicial work. Discussion among participants centered around the different kinds of "publics" they may wish to reach through their work -- victim communities, civil society, political leaders, international legal experts, and so on -- and how the media might be used to convey different messages for these various publics. The use of electronic media to convey these messages directly, for example through court websites and web-streaming of judicial proceedings, was also discussed as a possible strategy for courts to adopt as they consider how best to present their work to the world.

The BIIJ concluded with a session on the forthcoming book written by institute convenors Daniel Terris and Leigh Swigart, in collaboration with Cesare P. R. Romano. The International Judge: an Introduction to the Men and Women who Decide the World's Cases was inspired largely by Brandeis University's work with international judges through the BIIJ and other programming. The International Judge, which will be available in November 2007, adopted a multidisciplinary perspective to paint a broad portrait of the international judiciary and the institutions in which they serve.

The Brandeis Institute for International Judges 2007 combined formal sessions with the natural network building that takes place outside of the meeting room, through leisurely walks and meals among judges, always with the beautiful White Mountains of New Hampshire in the background.

BIIJ 2007 Participants:

  • Georges Abi Saab, World Trade Organization Appellate Body
  • Carmel Agius, International Criminal Tribunal for the former Yugoslavia
  • Desiree P. Bernard, Caribbean Court of Justice
  • Mehmet Guney, International Criminal Tribunal for Rwanda
  • John Hedigan, European Court of Human Rights
  • Khalida Khan, International Criminal Tribunal for Rwanda
  • George Gelaga King, Special Court for Sierra Leone
  • Bernard Ngoepe, African Court of Human and Peoples' Rights
  • Fatsah Ouguergouz, African Court of Human and Peoples' Rights
  • Hisashi Owada, International Court of Justice
  • Navanethem Pillay, International Criminal Court
  • Fausto Pocar, International Criminal Tribunal for the former Yugoslavia
  • Giorgio Sacerdoti, World Trade Organization Appellate Body
  • Peter Tomka, International Court of Justice
  • Nina Vajic, European Court of Human Rights

Directors:

  • Richard Goldstone, retired Justice of the Constitutional Court of South Africa and former Chief Prosecutor of the International Criminal Tribunal for the former Yugoslavia
  • Linda Carter, Professor, McGeorge School of Law, University of the Pacific

Presenters:

  • Stephen Schwebel, former Judge and President of the International Court of Justice
  • Gil Carlos Rodríguez Iglesias, Director of the Real Instituto Elcano de Estudios Internacionales y Estratégicos, former Judge and President of the European Court of Justice
  • Edward Lazarus, Lazarus Strategic Services

Convenors:

  • Daniel Terris, Brandeis University
  • Leigh Swigart, Brandeis University

Staff and rapporteurs:

  • Christopher Moore, Brandeis University
  • Stephanie Cartier, Adjunct Professor, Fordham University
  • Andrew Ginsberg, Brandeis University
  • Leila Alciere, Brandeis University
  • David Drayton, Brandeis University


The Brandeis Institute for International Judges 2007 was funded by the JEHT Foundation and the David Berg Foundation.