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Published online by Cambridge University Press: 20 January 2017
1 Henkin, Louis, How Nations Behave: Law and Foreign Policy 88–98 (2d ed. 1979)Google Scholar; Hans Kelsen, Law and Peace Ininternational Relations 1, 52, 54–55 (1942); Kennan, George F., American Diplomacy 1900–1950, at 95–103 (rev. ed. 1984)Google Scholar; D’Amato, Anthony, Is International Law Really “Law”?, 79 NW. U. L. Rev. 1293 (1985)Google Scholar.
2 Hafner, Gerhard, Pros and Cons Ensuing from Frag mentation of International Law, 25 Mich. J. Int’l L. 849, 856–58 (2004)Google Scholar; Koskenniemi, Martti & Leino, Päivi, Fragmentation of International Law? Postmodern Anxieties, 15 Leiden J. Int’l L. 553 (2002)CrossRefGoogle Scholar. In recent years, scholarly debates about pluralism have extended to the subfield of international criminal law. See, e.g., van Sliedregt, Elies & Vasiliev, Sergey, Pluralism: A New Framework for International Criminal Justice, in Pluralism in International Criminal Law 3, 10–11 (van Sliedregt, Elies & Vasiliev, Sergey eds., 2014)CrossRefGoogle Scholar; Greenawalt, Alexander K. A., The Pluralism of International Criminal Law, 86 Ind. L.J. 1063, 1069 (2011)Google Scholar.
3 Kate Parlette, The Individual in the International Legal System: Continuity and Change in International Law (2011); Clapham, Andrew, The Role of the Individual in International Law, 21 Eur. J. Int’l L. 25 (2010)CrossRefGoogle Scholar.
4 See, e.g., Jens David Ohlin, The Assault on International Law (2015); Eric A. Posner & Adrian Vermeule, The Executive Unbound: After the Madisonian Republic (2010); Eric A. Posner, The Perils of Global Legalism (2009); Eric A. Posner & Adrian Vermeule, Terror in the Balance: Security, Liberty, and the Courts (2007); Jack L. Goldsmith & Eric A. Posner, The Limits of International Law (2005); John Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11 (2005).
5 For instance, the Sabotage cases, which are detailed in chapter 2, formed the subject of a number of law review articles and book sections. See, e.g., Nelson, Timothy G., The Explosion and the Testimony: The WWI Sabotage Claims and an International Arbitral Tribunal’s Power to Revise Its Own Awards, 23 Am. Rev. Int’l Arb. 197 (2012)Google Scholar; Woolsey, L. H., The Arbitration of the Sabotage Claims Against Germany, 33 AJIL 737 (1939)CrossRefGoogle Scholar; Henrylandau, The enemy with in: The inside Story of German Sabotage in America (1937); 3 J. Gillis Wetter, The International Arbitral Process: Public and Private 302–06 (1979). Shabtai Rosenne deemed the Sabotage cases a “well-known instance of collusive or fraudulent evidence before an international tribunal.” Rosenne’s the World Court: What It Is and How It Works 253 n.23 (Gill, Terry D. ed., 6th rev. ed. 2003)Google Scholar.
6 I have seen very little scholarly discussion of the mis representations at issue in the boundary dispute between Libya and Tunisia before the International Court of Justice that forms the subject of chapter 4. The following sources contain brief mentions of the case: Geiß, Robin, Revision Proceedings Before the International Court of Justice, 63 Zeitschrift für Auslän¨disches Offentliches Recht und Völkerrecht 167–68, 175, 179, 184–85, 187, 189 (2003)Google Scholar; Cot, Jean-Pierre, Fraud on the Tribunal?, in Law of the Sea from Grotius to the International Tribunal of the Law of the Sea 597, 599 (del Castillo, Lilian ed., 2015)Google Scholar.
7 Karen J. Alter, The New Terrain of International Law: Courts, Politics, Rights 172–76 (2014); Arman Sarvarian, Professional Ethics At the International Bar 104–05 (2013); Marston, Geoffrey, Falsification of Documentary Evidence Before International Tribunals: An Aspect of the Behring Sea Arbitration, 1892–3, 2000 Brit. Y.B. Int’l L. 357, 357–58Google Scholar.
8 The only work that I could find that provides a similarly detailed look at Qatar’s forged documents is Jawad Salim Al-Arayed, A Line in the Sea: The Qatar V.Bahrain Border Dispute in the World Court 355–92 (2003).
9 The case studies suggest that different tribunals ascribe vastly different weights to finality. The U.S. Mexican Claims Commission of the mid-nineteenth century, for instance, “show[ed] great reverence for finality of international awards” (p. 10). It consequently rejected Mexico’s request for a rehearing based on new evidence because it assumed “that the administrative consequences of allowing the reopening of awards would undermine the entire decisional process” (pp. 10–11). by contrast, the German-U.S. Mixed Claims Commission did not hesitate to reopen the Sabotage cases based on American allegations of fraud (pp. 32–33). Some years later, another arbitral tribunal—the Iran-United States Claims Tribunal—exhibited a reluctance to reopen cases on the basis of fraud that was reminiscent of the U.S.-Mexican Claims Commission (pp. 117–23).
10 The authors’ description of the Corfu Channel case, Corfu Channel (UK v. Alb.), 1949 ICJ Rep. 4 (Apr. 9), highlights these tensions (pp. 54–77).
11 Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v. Bahr.), 2001 ICJ Rep. 40, paras. 18, 20 (Mar. 16) [hereinafter Maritime Delimitation]. The book also describes plainly forged documents submitted to the Iran-United States Claims Tribunal, as well as to the U.S.-Mexican Claims Com mission (pp. 9–12, 104–17).
12 Maritime Delimitation, supra note 11, para. 20.
13 Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunis. v. Libya), 1985 ICJ Rep. 192, para. 6 (Dec. 10).
14 Id., paras. 25–28.
15 The ICTR Appeals Chamber initially dismissed with prejudice the indictment against Jean-Bosco Barayagwiza and ordered him released after determining that the prosecution had violated Barayagwiza’s right to be brought promptly before a judge following arrest. Prosecutor v. Barayagwiza, Case No. ICTR-97-19-AR72, Motion for Orders to Review and/or Nullify Arrest and Provisional Detention, para. 119 (Nov. 3, 1999). This decision outraged Rwanda to such a degree that it suspended all dealings with the Ictr and refused to issue a visa to the Tribunal’s chief prosecutor, Carla Del Ponte. The prosecution consequently asked the Appeals Chamber to reconsider its decision and, in doing so, acknowledged Rwanda’s power over the Tribunal. In particular, Del Ponte observed: “If I don’t get cooperation from Rwanda,... I can first open the door at the detention center and set them all free and then second I can close the door to my office because without them I cannot do anything all.” J. Coll Metcalfe, An Interview with United Nations’ Chief War Crimes Prosecutor, Carla Del Ponte, Internews, Feb. 15, 2000, at https://web.archive.org/web/20010124093400/ http://www.internews.org/activities/ICTR_reports/IctrdelPonte.htm. Following Del Ponte’s plea, the Appeals Chamber reinstated Barayagwiza’s indictment, and relations between the Ictr and Rwanda normalized. Prosecutor v. Barayagwiza, Case No. ICTR-97-19-AR72, Decision on Prosecutor’s Request for Review or Reconsideration (Mar. 31, 2000). For an insider’s account of the crisis, see Kingsley Moghalu, Rwanda’S Genocide: The Politics of Global Justice 101–23 (2005).
Rwanda also responded very negatively to Del Ponte’s efforts to investigate members of the current Rwandan government. See Synthesis: Prosecutors at the ICTR, Arusha Times, Oct. 30, 2003, at http://www.arushatimes.co.tz/2003/43/un_tribunal.htm (reprint of Hirondelle News Agency story); Moghalu, supra, at 140. After Del Ponte was replaced as prosecutor by Hassan Jallow, no further investigations were undertaken. Victor Peskin, International Justice in Rwanda and the Balkans: Virtual Trials and the Struggle for State Cooperation 225 (2008).
16 Aldrich, George H., The Juris Prudence of the Iran-United States Claims Tribunal: An Analysis of the Decisions of the Tribunal 58 (1996)Google Scholar.
17 Id. at 26.
18 Among other things, Iran threatened to boycott any session involving the claims of dual nationals. Id. at 57–58. What is more, this ruling and certain others so upset two Iranian arbitrators that they physically attacked a Swedish arbitrator, Nils Mangård. Id. at 24–27.
19 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 ICJ Rep. 14 (June 27).
20 See also id., para. 134.
21 The Court found that “in the early months of 1981, an intermittent flow of arms was routed via the territory of Nicaragua to the armed opposition in El Salvador.” Id., para. 160. However it also concluded that “the evidence is insufficient to satisfy the Court that, since the early months of 1981, assistance has continued to reach Salvadorian armed opposition from the territory of Nicaragua on any significant scale, or that the Government of Nicaragua was responsible for any flow of arms at either period.” Id.
22 Judge Schwebel opined that Nicaragua’s allegations regarding its alleged supply of arms to El Salvador were “demonstrably false,” and he included a long factual appendix that included evidence to support his conclusions. Id., Diss. Op. Schwebel, J., para. 25.
23 Turner, Robert F., Coercive Covert Action and the Law, 20 Yale J. Int’l L. 427, 439 (1995)Google Scholar (reviewing W. Michael Reisman & James E. Baker, Regu Lating Covert Action:Practices, Contexts, and Policies of Covert Coercion Abroad in International and American Law (1992)).
24 Rosenne, Shabtai, The World Court: What It Is and How It Works 153 (5th rev. ed. 1995)Google Scholar.
25 Schwebel, Stephen M., Celebrating a Fraud on the Court, 106 AJIL 102, 103 (2012)CrossRefGoogle Scholar.
26 Reichler, Paul S., The Nicaragua Case: A Response to Judge Schwebel , 106 AJIL 316, 319 (2012)CrossRefGoogle Scholar.
27 Combs, Nancy Amoury, Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (2010), reviewed at 105 AJIL 848 (2011) by Malone, Linda A..Google Scholar
28 For instance, I determined that 92% of cases at the International Criminal Tribunal for Rwanda featured at least one example of diametrically opposed testimony between two or more witnesses, such that the testimony of one of the witnesses was necessarily inaccurate. I acknowledged that the high incidence of blatantly contradictory testimony stood as an imperfect measure of perjury given that some of the contradictions likely reflected the witnesses’ mistaken memories or perceptions, rather than their willfully false testimony. How ever, I concluded that because the contradictory testimony was so prevalent, it would be naïve to dismiss all—or even a significant proportion—as stemming from honest mistakes. Id. at 157–62.
29 I considered both cultural influences and financial incentives as possibly contributing to the incidence of false testimony. Id. at 130–48.
30 Id. at 281–82.
31 Id. at 282–85.
32 Id. at 321–33.
33 During a presentation at which I advocated perjury prosecutions for those alleged to have provided willfully false testimony, a judge from one of the tribunals reminded me that every dollar spent to prosecute per jury was a dollar that could not be spent to prosecute international crimes. Although I continue to believe that the costs of ignoring false testimony exceed the costs of combating it, I must acknowledge that, in a world in which funds exist to prosecute only a miniscule proportion of those who commit genocide, war crimes, and crimes against humanity, every diversion of resources is significant.