International law has both lofty goals and dirty secrets. A recent reminder of the dirtier aspects of international law came to the International Court of Justice (ICJ) in December 2013, when Timor-Leste filed an application alleging that Australian authorities had raided the office of an attorney representing Timor-Leste in a separate arbitration, and that during the raid these authorities had seized documents related to the arbitration.Footnote ¹ What is more, in the separate arbitration to which the seized documents relate, Timor-Leste alleges that Australia engaged in spying during the two states’ previous negotiation of a maritime treaty.Footnote ² Time will tell what conclusions the ICJ and the arbitral panel will draw in these cases, and whether any broad rulings on the alleged conduct will emerge. Even without a final resolution of the developments between Australia and Timor-Leste, however, these events demonstrate the larger point that international law remains, at least in part, a very dirty business.

An historical perspective on the dirtier aspects of international law – particular to fraud, rather than espionage – is provided in W. Michael Reisman and Christina Skinner's recent book, Fraudulent Evidence before Public International Tribunals: The Dirty Stories of International Law. The meat of the book is in the seven detailed ‘dirty stories’ that the authors have gleaned from cases before international courts and tribunals. Each story involves conduct or evidence that is, at best, questionable and, at worst, fraudulent. These stories concern matters as diverse as suppressed documents before the International Court of Justice in Corfu Channel, suborned witnesses in the Sabotage Cases before the German-United States Claims Commission, and the presentation of forged documents in the Iran-United States Claims Tribunal in Golshani. This book's use of such concrete examples is a welcome addition to existing commentary on attorney conduct in international proceedings,Footnote ³ much of which focuses on broader questions such as the general desirability of permitting witness-proofing or requiring document disclosure in proceedings before international courts and tribunals.

In preparing these stories, the authors deserve particular praise for unearthing and analysing fraudulent (or questionable) conduct that is not apparent in the ultimate decision of the court or tribunal. For example, the authors note that the Taba arbitration – regarding the boundary between Egypt and Israel – involved numerous explicit allegations of fraud by both parties, but none of these allegations is even mentioned in the tribunal's final award. Thus, to assess the effect of these allegations on the Tribunal's ultimate conclusions, Reisman and Skinner have extensively reviewed the written and oral proceedings of the case in their book, and they offer their own analysis based on that review. Similarly, in its judgment in Military and Paramilitary Activities (Nicaragua v. US), the ICJ resolved the case based on a legal theory that downplayed the importance of certain dubious factual assertions by Nicaragua. In his dissenting opinion, Judge Stephen Schwebel, to whom this book is dedicated, insisted that these dubious facts were indeed central to the Court's conclusions. Reisman and Skinner, for their part, attempt to shed light on the veracity of these factual assertions by discussing post-adjudicative news reports and scholarly commentary. With these seven stories, the authors demonstrate that fraud occurs in international proceedings, that it occurs in all types of courts and tribunals, and that it has widely varying manifestations.

In addition to these seven stories, Reisman and Skinner offer their analysis of overarching issues concerning fraud in international proceedings in the opening and closing chapters of the book. The authors begin by distinguishing fraudulent conduct from a mere partisan presentation of evidence, a tactic that the authors note is, unlike fraud, within counsel's ‘arsenal of accepted practices’. The authors also note that international courts may be reluctant to call a fraud by name when doing so might insult a state party to the case, and therefore a tribunal may state that it is simply unpersuaded by a certain argument, or that the asserting party has failed to shift the burden of proof. Such reluctance may be dangerous, however – due to the deference accorded to decisions of international courts in the shaping of international rules, such cautious language may lead to improper interpretation of the tribunal's silence or its dissembling statement of reasons.

The authors’ analysis leaves open three questions, each of which offers ample opportunity for rumination and follow-up works. First, the authors leave open the question of how an international court or tribunal might discourage the presentation of fraudulent evidence. In fact, the authors appear to almost accept that the presentation of fraudulent evidence is inevitable in international proceedings. As the authors reason, counsel's duty to serve the state will always trump counsel's duty of honesty to the court. Future works might explore, however, whether a court could implement rules to align these potentially competing duties of counsel to the court and state, such as by making clear at the outset of a proceeding that presentation of fraudulent evidence would damage the case of the presenting party.

Second, future research might explore ways in which an international court might go about testing evidence before it in order to detect fraud. Reisman and Skinner demonstrate that the dubious nature of evidence may become clear only years after proceedings are concluded, as in Nicaragua. Might a court use adversarial process rules to encourage each party to proof the other's evidence in order to detect fraud while the proceeding is still ongoing? Might a court itself request additional information or analysis if it suspects that certain evidence may be fraudulent?

Finally, future authors may rely on this book to help identify the most effective ways for international courts to address fraud after it has been detected. Reisman and Skinner note the variety in international courts’ and tribunals’ responses to fraud – from ignoring the conduct (at least on paper), as in the Taba award, to repeatedly revisiting proceedings in order to reach the correct result, as in The Sabotage Cases. The authors do not believe that creating a code of conduct for counsel in international proceedings would change conduct, and instead suggest that domestic rules of conduct for counsel might be applied. The authors acknowledge that this resolution is not entirely satisfactory, however, and that states may be unlikely to amend their rules of conduct to this end sua sponte. Future research might explore whether international courts could take steps to encourage states to adopt rules of conduct for counsel that would regulate and discourage the presentation of fraudulent evidence in international tribunals.

Thus, Reisman and Skinner paint a grim picture of the present conduct of international proceedings. As their stories demonstrate, no forum is immune from an attempt to present fraudulent evidence, not even the venerable ICJ or ad hoc tribunals with broad power over an individual proceeding. Moreover, even if fraudulent conduct or evidence is detected before a tribunal reaches a final result, repercussions for this conduct may be minimal. Reisman and Skinner's analysis of these seven concrete examples provides ample fodder for future contributions to conversations on this topic. By identifying so clearly the problem of fraud in international law, the authors have done much to facilitate future research into its resolution.