Shooting the Messenger? A response to Kip Hale’s call for the ICC community to engage in self-examination

cross-posted on Justice in Conflict.

Kip Hale has written a blog post on Justice in Conflict entitled “time to look into the mirror: ICC community in Need of Perspective”. For Kip, “this article’s goal is to hopefully spur a larger discussion – and maybe even some progress – concerning the lack of self-awareness and self-examination in our community”.

Kip levels a certain number of critiques against the community of ICC commentators, which would require a more thorough discussion than the next few paragraphs. But hopefully the following comments can begin to contribute to the larger discussion that Kip invites us to have.

Let me start, uncharacteristically maybe, with a point of agreement, and to put it in simpler terms than Kip did in his post : there are indeed, out there, a number of commentators who simply do not know what they are talking about. More specifically, it is not uncommon for some outside observers to ignore or not be aware of the internal dynamics of the institution, its history or even, sometimes, its applicable law.  As a consequence, they might provide inaccurate portrayals of the work of the Court.

This applies to lawyers but also to experts from other fields that take an interest in the ICC. For example, I’ve argued elsewhere, in a Leiden Journal of international law editorial, that a number of critical scholars run the risk of missing the mark in their analysis because they will ignore key aspects of the ICC’s work by refusing to peek inside the box of its legal and institutional intricacies.

If Kip had stopped there, essentially lamenting the lack of competence of some commentators, I could have more or less supported his position (although one could then wonder if making such an obvious point – “I wish people were competent at their jobs” –   would really have deserved a blog post at all), with a couple of caveats.

First, as pointed out by Kevin Jon Heller on twitter, it would have been welcome, if Kip was going to take the time to write his post, to actually give concrete examples and, most importantly, engage with them, which would certainly have been a more courageous move that make generic unverifiable statements about a whole community’s lack of competence or about unidentified persons’ “personal or professional need to be visible”.

Second, even if I agree with Kip that commentary is obviously enriched by actual and concrete knowledge of how the ICC operates internally, I cannot help but feel that his call for “humility” is a polite way of saying that people who do not know exactly how the ICC works from the inside should simply refrain from commenting. However, I don’t think that things are that simple, and it depends on what you are commenting on. While it might be harder to comment on the inefficiencies of the internal decision-making process without intimate knowledge of the internal workings of the Court, there are myriads of ICC-related matters that can be commented upon without such insider knowledge. It cannot be acceptable that someone who highlights the inadequacy of the legal reasoning of a decision is simply told that they don’t understand the compromise that had to be reached by the Judges, or that someone who criticises the effect of some prosecutorial strategies be told there was a very good reason internally why these strategies were adopted.

But Kip goes further and now we enter into familiar territory for those who have followed the exchanges between Kip and myself on twitter over the years.

Kip concludes his post with the following words of caution : “As we reflect on the Court at this important juncture, and in our respective roles, hope to contribute to its evolution and mandate of fighting impunity for the world’s gravest crimes, let us be guided by a few simple but fundamental words: “First, do no harm.””

This makes abundantly clear Kip’s position: that commentators should not only be competent, but that they have a moral obligation to support the ICC. Kip is not alone in thinking along those lines, and if I had received a euro every time I heard a variation of this position in conferences, on twitter and in private discussions over the years, I would be a very rich man right now.

But this is an extremely problematic position on many levels.

First of all, it assumes that if one does not “support” the ICC, one is necessarily “against” the lofty goals it embodies (albeit “inadvertently”, as Kip generously concedes from the top of his moral high ground). The underlying assumption is that the ICC is inherently, necessarily, ontologically a “good” institution that merely needs to be “tweaked” here and there. I sincerely tried to find a more civil word to describe this assumption, in a spirit of constructive dialogue with Kip and others who think like him, but the only word that accurately describes it is “arrogance”. Indeed, it kills from the outset any genuine foundational discussion on whether the ICC is the right instrument to achieve these goals. It casts a shadow over the volumes of legal, sociological, political, historical research that might suggest that other models of justice might be more fit to deal with mass atrocities, or even that ICL might not be an adequate paradigm at all. How can all this research compete with the ICC’s important mission towards “humanity” (no less)?

Second of all, how does that moral injunction fit in exactly with our professional ethics on a case by case basis. Let’s assume competence of commentators for the sake of the argument. When should they decide not to voice concerns about certain ICC practices, be they institutional or legal? If one disagrees, with substantiated arguments, that a decision by a Trial Chamber or Appeals Chamber is legally shaky, or if one truly believes that an OTP policy is ill-advised and inadequate, how is one to evaluate when to stay silent not to “do harm” ?

Of course, Kip is very careful to claim that “the Court should not be impervious to honest, well-reflected constructive critiques about making improvements when and where necessary”. But this is not very useful as a general statement if there are no guidelines on how to decide on a case-by-case basis what is acceptable “honest”, “constructive critique” and what improvements are “necessary”.  Who is to decide on this? These are ultimately subjective notions, because what is constructive is contingent not only on how an idea is presented but also on how open to hearing it the other side may be. To take my personal case and to avoid putting any of my fellow commentators on the spot: should I not criticise the Court’s case law on immunities or withdrawals simply because it might weaken the universalist goals of the ICC?

Ultimately, there is an uneasy feeling of « shooting the messenger » here because commentators are accused of weakening the Court when what might ultimately be weakening the Court is the practices that commentators are shedding light on.

Third of all, and more fundamentally perhaps, at least when it comes to legal scholars, I’ve always believed that we should distinguish between our legal analysis and our ethical preferences, lest we fall into a category of activists. A conflation of analysis and activism carries the necessary risk of our work being tainted and perceived as possibly biased.

As Joe Powderly and myself have observed in a recent Leiden Journal editorial:

The expectation that scholars working in international criminal law, and more specifically on the ICC, should tailor their criticism in a way that it is not perceived as undermining the moral claims of the ICC is problematic from an intellectual perspective. As legal scholars, we have a professional obligation of intellectual honesty in the conduct of our research. The fact that we have moral or ethical preferences in relation to a particular issue should not seep into our legal methodology, lest we cross the border between scholarship and activism. In this sense, the authors of this editorial do not believe that legal scholarship in the field of international criminal law should unquestioningly aim at supporting the system or making the system better. In fact, we believe that research teleologically guided in this way is more likely to suffer from lack of methodological rigour, because the scholar will more likely be trying to ‘fit’ the outcome of his or her research in a predetermined conclusion, to the point of denying any other reasonable legal understanding of an issue and, as a consequence, denying that any reasonable disagreement can be expressed

On a concluding note, I disagree with Kip’s statement that: “one critical component of evaluation and reasoned debate has been almost completely overlooked: us – ICC observers, commentators, stakeholders, and the larger engaged community outside of the Court. It is about time our community takes a long, hard look in the mirror”.

As mentioned above, this debate, flowing from the injunction to commentators to “support the ICC” has existed for as long as I can remember. More recently, this debate has been in the open in various foras, such as twitter and the blogosphere, and, despite my well-known disagreements with Kip, I have myself tried to contribute to it in a constructive way (see here and here). I would not have the arrogance of speaking for others, but I have thought long and hard for many years about these issues, and the fact that I still  disagree with Kip and others on their approach does not mean that I don’t want to take a “hard look in the mirror”.

Also astonishing is Kip’s claim that: “To say there are agenda-driven and unprincipled agents engaged in the field of international criminal justice often flabbergasts newcomers to the field”. It is indeed ironic that Kip would criticise some outside commentators for being “agenda-driven” in a blog post that is so unashamedly “agenda-driven” itself, i.e, to promote the Court’s importance for humanity (no less). The fact that Kip is promoting what appears to be noble goals does not make them less of an agenda.  It is a healthy process for “newcomers”, as Kip calls them, to shed their naive belief of a Court floating in a bubble of pure unpolitical moral idealism, within which the “good” guys are trying to save humanity (no less) from the “bad” guys and their nefarious “agendas”. Yet every stakeholder, both within and outside the Court, has an agenda, whatever it may be, and that is what makes studying the ICC, and working in this field, so fascinating.

The reality is that we, commentators, are often the ones presenting a mirror to the ICC that it refuses to look into, lest it show a reality that it does not want to acknowledge, and that is the real debate that we should be having here. All too often, whatever the source and quality of the criticism, the ICC, be it Chambers or the OTP, adopts a defensive, siege-mentality, trying to “correct the public record”, as Kip puts it. But should the ICC/OTP really be spending time and resources in aggressively responding to a university report (whatever one might think of the report), issuing Q&As to lament being treated unfairly by the blogosphere or making videos to refute twitter rumours? If the ICC’s mandate of saving humanity (no less) can really be derailed by an ill-informed tweet, then the ICC is most certainly in serious trouble indeed.

Criticising commentators in such circumstances is like focusing on the finger when the wise man is pointing to the moon, as the saying goes, which, I’m sure Kip will agree, can only take us so far in the bigger scheme of things.

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