I feel it important to open this review of Terris, Romano, and Swigart's book The International Judge with a declaration of my own bias. As I am a law clerk and member of the Legal Department of the International Court of Justice, I have taken special care to read this book with an open mind. Certainly, the authors of The International Judge have undertaken a brave endeavour: to offer insights into the work of the international judiciary from an interdisciplinary perspective. To that end, Terris is a historian, Romano an international lawyer, and Swigart an anthropologist. It is an admirable project to analyse the international judiciary from a wider viewpoint than the purely legal. However, in so doing, the authors have focused very closely on the personalities of the individuals involved and how they work together, and have done so to the detriment of other perspectives.

The International Judge appears to be a book unsure of its own audience. As a result, it ultimately casts its net too wide, presenting itself as ‘accessible to readers who are curious about international law . . . but new to its study’ (p. xv), while simultaneously declaring itself to be of use to scholars of international law, historians, anthropologists, and other social scientists (p. xvi). In chapter 1 the authors immediately launch into a robust defence of the institutions and projects with which the authors are affiliated, as though they were somehow unsure of the legitimacy of their work. The authors seem more confident in their dispassionate description in chapter 2 of how nominations and elections to the bench proceed. The authors write from the point of view of the judges themselves; in doing so, they chronicle the process by which such judges arrive at the bench in a relatively accurate manner.

Chapter 3 is the point where serious problems emerge. It begins with a slightly tangential discussion of the architectural features of the Peace Palace and the other buildings where the various courts are housed; thereafter, the chapter segues into a discussion of how judges supposedly work. That discussion, although well written, proves to be quite vague; the authors decline the opportunity to provide greater insight into the methods by which international judges operate. Instead, they have chosen to frame the judicial process in highly personal terms. Moreover, there are methodological problems with the authors’ approach. For example, the authors quote a judge of the International Court of Justice in order to comment on the workflow and drafting process of international criminal tribunals, rather than a judge of a criminal tribunal itself (p. 57). This is problematic: when such personal conjectures from an outside perspective are uncritically presented as empirical evidence from within an institution, the aspiration of the book to employ the methods of the social sciences and the humanities falls short.

The authors then present the deliberative processes of the various judicial institutions seriatim, with little comparison made between them or insight offered as to how each process influences the product or judicial decisions of each institution. Indeed, the only observation offered by the authors is the insight that all these institutions operate on the principle of ‘collegiality’ (p. 62). Later, when describing the relations between judges, the authors seem determined not to offend, making the innocuous observation that ‘personality traits are important’ (p. 67), yet devote only a scant two and a half pages to describing the tension between judges trained in the common law and those trained in civil law (pp. 68–70). It would have been of greater interest to offer the judges’ own insights as to whether there are differences of approach between the judges trained in these and other legal systems as to the function of the judge, the role of a court, and the authority of a judgment, especially in the light of the broad audience at which the authors have aimed this publication. Such a discussion would have helped to illuminate the linguistic issues which the authors then describe in tolerable but summary fashion (pp. 72–9). The authors’ description of counsel and advocates appearing before international judges of the various institutions is unnecessarily brief, and no account at all is given of the procedures employed by these courts (pp. 84–9). A deeper discussion on these points would have been helpful to the reader in accounting for how international judges approach the arguments put before them.

Chapter 4 begins with a promising title, linking ‘International judges and international law’. At first, the authors provide an admirable description of the evolution of the procedure of the World Trade Organization (WTO) Appellate Body. However, the chapter loses some of its momentum when the authors turn suddenly to the International Criminal Tribunal for the former Yugoslavia (ICTY), which they praise at great length for its innovations and its challenges in establishing an international criminal procedure. This is again problematic: their praise for the ICTY neglects to discuss in detail the procedural problems faced by that tribunal, and notably refrains from elaborating on the reasons why the ICTY amended its procedural rules 37 times (pp. 109–10). Making the transition to the differences between civil and common law approaches to procedure, the authors describe how the question of hearsay is considered at the international level (p. 111), but do so in a manner that does not fully consider the important conceptual differences in how those domestic legal systems grapple with the issue. Readers unfamiliar with international criminal law would have benefited greatly from additional discussion on this point. Moving then to a discussion of the sources of international law (p. 112), the authors attempt to avoid controversy; but in so doing, they sidestep the insights the judges might have presented to us as regards the way in which they apply legal sources in practice. While the fear of problematizing certain aspects of judicial work is understandable, especially when retaining an interview-based methodology, important questions and avenues for possible criticism were left out, perhaps deliberately.

Chapter 4 is also where the authors take on the complex and insufficiently explored question of whether international judges have the power to make international law. Here, too, they grapple with an immensely intricate issue and ultimately give it very short shrift. The authors liken the development of the law merely to ‘judicial law-making’, and remain content to enumerate a list of cases in which tribunals expressed these principles, rather than focusing on the question of how such judicial decisions do or do not develop international law. Of particular note is the somewhat meagre discussion of international precedent and inter-judicial dialogue (pp. 118–21). Here, the authors oversimplify the rule of stare decisis to the point of misrepresentation. Stare decisis does not require that courts be bound by their previous decisions, but rather requires them to consider their previous holdings.Footnote ¹ Courts may exceptionally depart from their previous judgments by distinguishing them or overruling them entirely. Moreover, on the important question of dissenting opinions, the authors review in descriptive fashion the principal arguments for and against them, before concluding that individual opinions might constitute a ‘subsidiary source’ of international law (p. 126). Finally, their discussion of the law-making role of courts (pp. 127–30) avoids substantial discussion of the actual theories espoused by these institutions and the judges who compose them.

Chapter 5 discusses the role of politics in international judicial bodies, and the attempts of the international judiciary to separate out the political from the legal in its work. In so doing, the authors focus specifically on the distinctions between the national and international allegiances of the judges and the influence of states on the nomination processes, rather than on the judicial processes whereby judges arrive at these distinctions. The doctrine of justiciability and the ‘political questions’ doctrine are examples of such aspects of the judicial process which would have merited at least passing mention. Although it is fair to raise the question of national versus international allegiance, it is of limited utility in understanding the conditions in which judges work; moreover, other systemic constraints inherent in the international judicial function are barely touched on, especially as a judge will be extremely ticklish in disclosing the details of any pressure which may be exerted on him or her in the discharge of their judicial role. Exploring the process whereby the political is translated into the legal might have been more fruitful for the authors in making their arguments on impartiality.

Interesting anecdotes about financial constraints aside, much of the subsequent discussion focuses specifically on US approaches to the international judicial function. This is especially true of the section entitled ‘The United States’ shadow’, (pp. 164–70), whose cursory evaluation of recent US policy is nothing more than a distraction. This chapter redeems itself somewhat, however, in an interesting discussion of the competing considerations of public opinion, awareness, justice, and effectiveness which the various international tribunals must balance. Given the variety of functions that these tribunals serve, these distinctions are valuable ones. Such competing considerations go to the heart of how international legal institutions view themselves, and the authors strive to demonstrate that the international judges carry a heightened awareness of these constraints and that they aspire to a certain modesty in the manner in which they discharge their functions.

In chapter 6, entitled ‘Tests of character’, the authors take on the difficult question of judicial accountability. It is an important issue and one that is not often explored by academics in the international legal field. In discussing it, the authors highlight some of the challenges inherent in safeguarding the judicial function, in particular questions of bias and partiality. Ultimately, however, this chapter reads more as an enumeration of possible problems than as a study of those problems in any real depth. This chapter alone could have been the subject of an entire book, and it is unfortunate that the struggles for impartiality faced by judges were explored with such brevity.

Certainly the inner workings of hallowed institutions are the stuff of legend, and of heightened interest to those who do not have access to the system. The appeal of The International Judge, then, is understandable: its authors attempt not only to illuminate the work of international judges but also to laud their central role in the international legal order. Yet, despite touching at times on very interesting subjects, this book remains at best a deliberately general overview of judges’ work, and its lack of focus undermines its authors’ best efforts at providing useful insights. By highlighting many of the tangential, anecdotal aspects of the judicial craft, the authors confuse the uninitiated reader as to what is important and neglect the audience of legal professionals who might otherwise have been interested in this study. Perhaps the problem is the book's structure; by interspersing long and uncritical profiles of the judges between its substantive chapters, the book at times takes on a slightly scattershot tone with its relentless focus on the judges’ personalities and biographies, yet without offering the reader their actual views on the judicial role. In my view, the authors have missed valuable opportunities to go beyond the interviewees’ personal experiences and seek further insights from them into how they and their colleagues perceive their role within the international legal system.

Finally, there seems to be an unquestioning reliance on many specifically American assumptions about the judicial function. This tendency could have been counterbalanced by an enquiry, in the substantive chapters, as to the judges’ perceptions of their own judicial function in international law, of their role in the institutional international order, and of the role that they play in the development of international law.

The interdisciplinary approach undertaken by this book is admirable. Moreover, the breadth of the research undertaken is remarkable, having surveyed a substantial percentage of the international bench. Yet doubts persist about recommending it to its intended audience, and perhaps it is precisely the question of the ‘audience’ which is the problem. By aiming this book at both the layperson and the experienced legal professional, the authors seek to provide both a general overview and yet also a precise analysis of the work of the international judge. However, the book has been confined, perhaps unavoidably so, to an analysis of international judges’ work primarily through the lens of their personalities. Although its authors promise transparency and openness, in their studious avoidance of difficult questions and controversial issues they have unfortunately delivered an oversimplified story of some of the most powerful normative actors in the contemporary development of the international legal order.