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A few thoughts on the ICJ's decision to appoint its own experts in relation to the thorny issue of reparations in Armed Activities (DRC v Uganda). As ever, I recommend this thread by @mabecker17 
and offer a few additional thoughts of my own. 1/11 https://twitter.com/mabecker17/status/1308810722428751872
and offer a few additional thoughts of my own. 1/11 https://twitter.com/mabecker17/status/1308810722428751872
Basically, I think we have mounting evidence of the ICJ being a Court that is not only receptive to criticism of its fact-finding process but which is also taking steps to address it. 2/11
When I was doing my PhD, I remember reading Judges Simma and Al-Khasawneh's opinion in Pulp Mills for the first time. It lays out a litany of problems with the way the ICJ has traditionally conducted fact-finding. But how many of these criticisms can still be made today? 3/11
Since the Court stated in Pulp Mills that it had had enough of parties putting experts forward as counsel to shield them from cross-examination, this practice has stopped. And what about the practice of the Court consulting experts fantĂ´mes? 4/11
Despite Judge Bennouna writing in support of it in the JIDS, and the Court shying away from doing so during the compensation phase in Certain Activities in 2018, the Court has now appointed its own experts twice in the last 4 years. 5/11
This is complete speculation, but the types of questions the 4 experts in Armed Activities have been tasked with answering are what I'd imagine phantom experts would have been asked in years gone by. 6/11
(Of course, by its very nature the informal consultation of experts is unknowable, but let's not let that get in the way of my nice narrative.) Now, what else? 7/11
A more minor issue, but in the Court's most recent order, parties are given a chance to question the Court's experts, something that is not provided in the Statute or Rules, and that parties have not had the chance to do until now. This is a good thing. 8/11
and MOST IMPORTANTLY - the Court is going ahead with this despite the fact one of the parties objects. This will be a litmus test for how a more proactive approach to fact-finding (which I've been arguing in favour of for years) will work when parties don't play ball 9/11
Anyway. Am I saying that the Court's fact-finding process is now brilliant? Of course not. But it has made progress. Issues remain, like how it goes about identifying individuals to act as its experts - I've made proposals relating to this and other things in the GYBIL 10/11
10/11
And all of this not to mention the super interesting fact-finding issues in The Gambia v Myanmar. In short: is the ICJ now 'taking facts seriously'? Well, it seems to me at least a wee bit more seriously than before. 11/11
