Fraudulent Evidence Before Public International Tribunals: The Dirty Stories of International Law.

Author:Combs, Nancy Amoury
Position:Book review
 
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Fraudulent Evidence Before Public International Tribunals: The Dirty Stories of International Law. By W. Michael Reisman and Christina Skinner. Cambridge, New York: Cambridge University Press, 2014. Pp. x, 222. Index. $90.

International law scholarship frequently centers on big-picture theoretical and conceptual questions. Scholarly debates asking "Is international law law?" were all the rage some decades ago, (1) while now much ink is spilled on the fragmentation (or pluralism) of international law, (2) the rise of the individual in international law, (3) and renewed debates pitting realism against idealism, (4) among other lofty topics. Although these and other theoretical dialogues have been instrumental in advancing international law conceptually as well as practically, they can inadvertendy crowd out more commonplace issues that can have an equal or greater impact on international law and its development. One of these more mundane, yet vitally important, concerns is the subject of a new book, Fraudulent Evidence Before Public International Tribunals: The Dirty Stories of International Law, written by W. Michael Reisman, the Myres S. McDougal Professor of International Law at the Yale Law School, and Christina Skinner, an Associate in Law at Columbia Law School.

Fraudulent Evidence Before Public Lnternational Tribunals, as its name suggests, details a series of cases in which litigants presented false, forged, or otherwise misrepresentative evidence to international courts and tribunals. Each chapter presents a case study (seven in all), with the first dating from World War I and the last concluding in 2001. Whereas some of the case studies had already been well treated in the scholarly literature, (5) others were virtually unknown before the publication of this book. (6) Moreover, even those cases that had received a reasonable amount of scholarly attention are discussed far more expansively in this book. For example, although several law review articles and books summarily describe the forged documents that Qatar submitted to the International Court of Justice (ICJ) during its boundary dispute with Bahrain, (7) Fraudulent Evidence Before Public International Tribunals examines the forgeries in scrupulous--and interesting--detail. (8)

Indeed, the authors' careful and comprehensive detailing of the various cases probably stands as the book's most notable feature. And beyond such detailing, the authors also include a substantial quantity of background and contextual material that makes the book both informative and accessible. Some of the international disputes in question occurred many decades ago, so readers may not be entirely familiar with them. The background materials that the authors include, however, help to situate each conflict in its relevant geopolitical and legal context. That said, at times the book's descriptions are so richly detailed that readers must take care not to lose the forest for the trees. But overall the book's most significant contribution likely lies in its careful documentation of a series of otherwise unrelated cases in which the presentation of fraudulent evidence not only impaired the relevant international court's ability to find accurate facts but also forced the court to grapple with a host of difficult questions. The discovery of fraudulent evidence in some cases, for instance, required courts to balance carefully the interests of finality against the interests of accuracy. (9) Allegations of fraudulent evidence in other cases led courts to employ evidentiary devices such as presumptions, burden shifts, and adverse inferences, which can serve to deter or encourage the presentation of fraudulent evidence depending on how they are used (pp. 104-17). Finally, cases in which government lawyers were asked to submit questionable evidence or advance misrepresentative arguments for the good of the nation showcased the clash between sovereignty and professional ethics that can occur in international litigation. (10)

The authors advance certain conclusions about these issues as they relate to the case studies in question. For instance, they criticize the Iran-United States Claims Tribunal for its "marked disinclination" to publicly call out fraudulent evidence for what it is (p. 125). In addition, they critically observe that the Tribunal's use of inferences, presumptions, and evidentiary burdens, though reasonable on its face, led the Tribunal to impose "no sanctions for the use of fraudulent evidence" (pp. 125-26). The authors also put forth some preliminary views on the questions of professional responsibility raised by fraudulent evidence. They argue, in part, that, in an international case, the burden of containing fraud should be borne by the counsel proffering the questionable evidence (p. 190). The authors recognize that placing the burden on the proffering counsel could give rise to significant practical difficulties, especially if it requires a lawyer to use experts to investigate his own client and the documents that the client provides (id.). They nonetheless conclude that because proffering counsel possess such superior information about the evidence that they submit, they should bear the burden of satisfying themselves of the evidence's authenticity (id.). The book ends with a seven-page conclusion in which the authors delineate the various difficulties that render "practicable solutions to the problem of fraudulent evidence before public international tribunals ... elusive" (p. 193).

Although the authors reached well-supported and interesting conclusions, through much of the book I found myself itching for more. In particular, I wished that the...

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