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

Dov Jacobs joins JiC for this post in response to Kip Hale’s piece from last week, entitled ‘Time to Look in the Mirror: ICC Community in Need of Perspective‘. Dov Jacobs is an Assistant Professor in International Law at the Grotius Centre for International Legal Studies at Leiden University. He is also the author of the blog, Spreading the Jam.

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.

About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in Guest Posts, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice and tagged . Bookmark the permalink.

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

  1. The Fatal flaw of the ICC’s critics is their inconsistency- decrying the Court for being “too weak” one minute and then assailing it for being “too strong” the next!

  2. Pingback: Shooting the Messenger? A response to Kip Hale’s call for the ICC community to engage in self-examination | Spreading the Jam

  3. Kip Hale says:

    Dov,

    Thank you for this response. I do appreciate it, more so than just the parts where you agree. Yet, it comes as no surprise that we find ourselves at odds.

    Let’s take a step back and recall that my article’s primary message was to urge ICC commentator/stakeholder/engaged community to incorporate more humility and perspective into their commentary and work; responsibility for one’s commentary and work. Discipline and accountability for what we say and do. Ethics and intellectually honesty in how we engage. These ideas do not emanate from a moral high ground or some sense of superiority but are rather basic tenants of professionalism and seriousness. Yet, based upon your response and other online reactions, there is a real troubling reticence to this fully justified and simple message. Reading the reactions and the selective reading of my thesis, one would think I was urging a gag order on all things ICC.

    To be painstakingly clear, constructive criticism and commentary on the ICC are needed and should be encouraged (re-read my piece – this point was made loud and clear). Freedom of speech creates the marketplace of ideas where bad ones are ventilated and good ones are elevated. The premise of my article, in part, was that our community is failing at properly evaluating the marketplace of ideas, and more acutely, in generating ethical, informed, and constructive criticism against the reality that is the ICC, the political environment in which it operates, confidentiality constraints it has as a judicial institution, and other like factors at play.

    Let me first tackle a few smaller items raised by Dov. First, there is something quite ironic about being called arrogant by Dov; it takes one with a strong ego to profess to know one. The same irony extends to an article entitled “Shooting the Messenger?” as if the ICC commentary community is the courier of absolute truth and my article and others are standing in the way of enlightenment. Truth can come from many places, including from inside and outside the Court.

    Second, my commentary was not directed at the type of jurisprudential commentary he discusses. Questioning and pondering over judicial and prosecutorial legal interpretations are foundational components of the practice of law. Of course, I am sure Dov knows fully well that my article was rather directed at the type of organizational, institutional, management, etc., criticism that represents the lion share of ICC commentary, whether online or in other fora.

    Third, Dov also knows that “agenda-driven” is a term of art that he has twisted to make a rather mundane point. Sure, we all have agendas that span the spectrum. Yet, the rather obvious point made in my article is that “agenda-driven” actors are ones that have nefarious, self-promotional, or other questionable goals that are contrary to the goals of accountability for atrocity crimes and justice for victims.

    In this regard, if he is looking for an admission that my agenda is the promotion of the ICC as a key institution in the global fight against impunity for atrocity crimes (an institution built on the principle of complementarity to work in tandem with other mechanisms and jurisdictions), Dov and others know that is my “agenda”, of course, one that I am proud of. Yet, my agenda also includes continuous improvement of the Court, an approach that any serious institution with such an important mandate should adopt. One that the ICC is clearly adopting by all indications.

    I hope most in this field have the same agenda. Otherwise, it is rather insular and aimlessly theoretical to hide behind some sense of academic freedom to explore whether or not the ICC is fit for purpose, helpful to international criminal justice, and like lofty questions when there is a real, brick and mortar, staffed, operational ICC in front of us and that this commentary, when done without seriousness, can destabilize the Court. Sure, ask such questions, but do so, again, with an understanding of the many real-life consequences in doing so.

    My main issue with Dov’s piece is two-fold: underestimating the forces that undermine international criminal justice and the circular logic that he and others promote concerning “constructive criticism.”

    While I appreciate that he agreed that some ICC commentators “do not know what they are talking about”, it is troubling rhetoric to minimize this problem as simply “lamenting the lack of competence.” Dov, this problem is much bigger than that.

    Putting aside even the substance of the commentary, let us talk about how it begins and where it ends. Maybe the commentary or work product is innocuous or purposefully damaging. It may come from academics trying to make a name, disaffected practitioners, civil society representatives frustrated with the slow pace of justice, and/or diplomats pushing an anti-ICC budget position. Whether well-intentioned or not, they can and often push out and collectively amplify a flawed narrative out of some sort of interest, cause, agenda, etc. This narrative starts to take hold. Media, allies of the commentators, and/or detractors of the Court pick it up and trumpet until it becomes a “truth”, regardless of how untrue it may be.

    Guess who ends up holding the proverbial bag? The ICC. Guess who pays the ultimate price? The international criminal justice project as conceived by the Rome Statute and victims of atrocities who look to the Court for some measure of justice. Is the Court blameless in this hypothetical? Absolutely not. Far from it. But my article was not about the ICC’s failings. There are plenty of those articles, meritorious and otherwise. My piece was about our failings, and our involvement in this hypothetical, which, unfortunately, is all too real. As said elsewhere, it may be an inconvenient truth, but truth it is. The article’s message, in no small part, was to query our community about what will we do in the face of this truth?

    Lastly, Dov and others engage in circular logic when it comes to their complaints about what is “constructive criticism.” Putting aside the fact that constructive commentary is not rocket science, the common retort to calls for such criticism takes the form of “what is acceptable criticism and what is not? What are the guidelines? When can I comment and when can I not?” The undeniable implication of these questions is that there cannot or should not be such guidelines. When, in response, someone asks “does that mean commentary and related work is without bounds or restraint? That one has “carte blanche” to say whatever they want without consequence or care? The invariable reply is “of course not.” As Carla Ferstman said on Twitter, it should be “informed, fair, and not gratuitous.” Then there begins a discussion about diligence, seriousness, intellectual honesty, competence, perspective, and humility in the face of the reality that many are not privy to all the facts and don’t have a monopoly on knowledge. Hence my article.

    I conclude with a very kind and well-said public comment left by Dr. Deborah Ruiz Verduzco that encapsulate the article’s message well, “Dear Kip, thank you for your timely and relevant article. Humility and an ethical approach are, as you say, very much necessary to bring honesty to the community that surrounds the ICC. As we all work together towards accountability, your article calls everyone involved also to take responsibility for what they say and do.”

    Let’s indeed take a hard look in the mirror.

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