1. Introduction
During the negotiation of the Rome Statute of the International Criminal Court (ICC), the importance of the Court’s independence was repeatedly stressed. At the time, delegations understood independence to mean a resistance to political influence, especially originating from states.Footnote 1 As one delegate put it, ‘the Court should be … independent of any political influence, and its judgements should be given exclusively on the basis of law’.Footnote 2 In the view of another delegate, the Court’s independence would resist political pressure that consisted of ‘the particular rather than the universal, the exclusive rather than the inclusive’.Footnote 3 The general consensus was that the Court would displace complaints of ‘victor’s justice’ by emancipating law from the machinations of politics. Hence, the Court was founded on a peak confidence in legalism: an ideological belief in law’s superiority to politics.Footnote 4
Today, optimism in the Court’s legalism has long since waned. More than 15 years since the Court opened, faith in its independence has undergone a deep malaise, particularly on the African continent.Footnote 5 Distrust has been frequently attributed to the Court’s ‘engine room’: The Office of the Prosecutor.Footnote 6 Arguably its most public face, the Office is perceived to be synonymous with the Court because its prosecutorial selections are pivotal and tend to draw the most criticism. Those objections begin with the Prosecutor’s investigations focusing – almost exclusively – on African states.Footnote 7 Furthermore all of the Court’s trials and the resulting eight convictions have been of nationals of African states.Footnote 8 In addition, concerns are raised about the Prosecutor’s lack of even-handedness in selecting cases across opposing parties to a conflict. These concerns have led to a critique of ‘lawfare’,Footnote 9 and often arises when the Prosecutor has an unduly close relationship to a government that, de facto, shields the state from criminal investigations.Footnote 10 Finally and more in general, selections that begin with a United Nations Security Council (UNSC) referral also attract opposition. For instance, the UNSC’s triggering of the Court’s jurisdiction in the situations in Libya and Sudan has underlined the criticism that the Prosecutor is subject to the vagaries of global geo-power politics.Footnote 11
Unsurprisingly, many African governments have become deeply opposed to the Court and have helped generate a narrative about its political bias. The governments of Uganda and Sudan have been regular critics, and, notoriously, the Kenyan government actively campaigned against the Court and its Prosecutor.Footnote 12 Such has been the widespread perception of the Court’s bias that South Africa and Gambia have attempted to withdraw from the Rome Statute, before Burundi, recently, became the first state to formally do so.Footnote 13 At the 2017 African Union summit, the sentiments of many governments were expressed in a strategy that con templated a collective withdrawal from the Rome Statute, and which began by declaring that the Court was ‘riddled with … struggles over its perceived legitimacy’.Footnote 14
Poor perceptions from African governments have come to be expected, but the Prosecutor has persistently distinguished the importance of ‘affected communities’.Footnote 15 Prosecutions are conducted in the name of these communities (comprised of victims and those most affected by alleged crimes) and they are the essential audience where justice must be seen to be done.Footnote 16 Evidence from the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) indicates that perceptions of political bias among such communities can be highly damaging to a tribunal’s perceived legitimacy.Footnote 17 Of course, these perceptions are shaped by a multitude of factors including ethnic affiliations, psychological biases and media distortions.Footnote 18 Nonetheless, the ICC’s effectiveness depends on attracting perceived legitimacy among affected communities if justice – whenever it comes – is to be seen to be done.Footnote 19 In this regard there is some cause to be optimistic about the Court’s effectivenessFootnote 20 but it remains imperative for the Court to be seen as legitimate within the communities, that, ultimately, help to achieve its mandate.
In this context, this article enquires into the Office’s ability to persuade affected communities that the Court is politically independent. Specifically, the article analyzes rhetoric; understood as the use of persuasive language, either verbal or written, directed towards given audiences.Footnote 21 The analysis focuses on the Office’s ‘public communications’, namely its own projection of information to an audience external to the organization. These are in contrast to organizational communications that have an internal audience, such as the Prosecutor’s courtroom advocacy which is confined to the particulars of the case and is generally directed towards the bench.Footnote 22 The article selects rhetoric used to defend, explain or otherwise convey the Court’s political independence and, specifically, targets expressions of legalism. These expressions are pervasively found across the Office’s public communications, and is a self-evident choice because legalism countervails politics; by definition, it is ‘sealed off from politics, and cannot … amount to political preference’.Footnote 23 Fundamentally, legalism is used as a legitimation strategy; providing justifications that seek to attribute validity (and inspire confidence) in the Office’s decision-making.Footnote 24 The ensuing analysis reveals the limits of legalism’s persuasiveness but first the article begins by establishing the significance of the Office’s rhetoric.
2. Rhetoric
The study of rhetoric has long been a part of the ‘law and literature’ movement.Footnote 25 Law has been described as the ‘very profession of rhetoric’Footnote 26 and legal argumentation and advocacy are interwoven with persuasion.Footnote 27 However, hitherto, there has been limited research exploring its role in respect of the ICC. Existing literature has tended to subsume rhetoric found in announcements, declarations or statements for case-specific purposes, or within notions such as ‘dialogue’ or ‘practice’.Footnote 28 Similarly, the literature on the Court and legalism has focused on their general relationship with one another, rather than a particular actor’s use of legalism in their rhetoric.Footnote 29 Put another way, literature on the Court has lacked a discrete treatment of rhetoric that distinguishes an actor, a context and the content of the rhetoric being communicated. The present article compensates for the lack of specificity by distinguishing the Office, a context of distrust in the Court’s political independence, and the content of legalism. In so doing, the article stimulates reflections about the Office’s discursive conventions that may resonate with other international legal actors. In this light, the Office’s rhetoric is significant for, at least, three reasons.
First, rhetoric is significant because its function of persuasion depends on the audience to whom the rhetoric is addressed.Footnote 30 Persuasion is a process of psychological change in recipients pertaining to their actions or beliefs, i.e., being persuaded to do, or to believe, something.Footnote 31 It is inherently communicational, with those seeking to persuade using language to influence and modify attitudes, beliefs and the existing perceptions of the audience.Footnote 32 Thus, rhetoric has an interdependent connection to an audience that is defined as an ‘ensemble of those whom the speaker wishes to influence by his argumentation’.Footnote 33 On the one hand, an analysis of the Office’s rhetoric highlights the Court’s ‘audience dilemma’; an expectation that the Court must ‘speak to’ a range of audiences, from abstract entities (such as the ‘international community’) to concrete constituencies (such as victims).Footnote 34 However, by the same token, rhetoric invites the identification of a concrete audience upon whom the rhetoric’s persuasiveness can be analyzed. In so doing, rhetoric offers insight into the Office’s effectiveness in establishing a meaningful two-way communication to those most affected by the commission of atrocities.Footnote 35
Second, and relatedly, rhetoric is a ubiquitous social practice that has a behavioural impact on audiences.Footnote 36 Rhetoric, in its nature, determines the range of political ideas that people encounter and thus shapes the ideas that become a part of a society’s common understandings; helping to enable (or disable) groups to challenge existing social structures.Footnote 37 Hence, rhetoric is a component of the Office’s expressive function, namely, its broadcast of messages and norms that helps construct a consensus across a given society.Footnote 38 In this sense, rhetoric is a pedagogic tool that can cast a shadow on affected communities and in so doing, illuminates the Office’s effectiveness in promoting behavioural change that helps to achieve the Court’s goals, such as the prevention of crimes and more indirectly, peace, stability and reconciliation.Footnote 39
Third, rhetoric is significant for its deeper relationship with the ‘truth’. Both concepts are commonly understood to be hostile to one another with rhetoric having a pejorative association to terms such as deception, falsehood or pretence.Footnote 40 Indeed, Locke described rhetoric as being invented ‘for nothing else, but to insinuate wrong ideas …’.Footnote 41 However, Aristotle argued rhetoric is not inimical to truth but was necessary to enable the discovery of facts and to mobilize support from an audience.Footnote 42 Admittedly, rhetoric can argue the truth in several ways and its very contestability reinforces differing baselines with which to assess truth.Footnote 43 For instance, disagreements about rhetoric’s claims to truth are acute in the context of legal argumentation (e.g., the interpretation of facts, concepts and meanings) because both legal arguments and rhetoric are premised on probability rather than certainty, and thus share an ‘all-or nothing’ desire to secure the assent of an audience.Footnote 44 Nevertheless, rhetoric need not be approached with an a priori scepticism; rather its analysis is a heuristic technique that can expose an attempt at persuasion that distorts the truth.Footnote 45 Thus, the rhetoric’s denial or reliance on truth can help determine the effectiveness of the Office’s persuasion strategy towards affected communities.
3. Methodology
The study of rhetoric does not fit within ‘a tidy academic pigeonhole’.Footnote 46 Rhetoric is a phenomenon of multi-disciplinary interest and the literature is found, among others, within the disciplines of linguistics, political science and psychology.Footnote 47 For instance, in political science, Alan Finlayson’s development of the ‘rhetorical political analysis’ demonstrates the benefits of using rhetorical concepts to investigate arguments, and the ‘proofs actors bring forward in justifying claims and giving reasons for others to share them’.Footnote 48 Similarly, rhetoric can be located within a ‘sister’ analysis of discourse that targets texts and ‘language in use’, and enables the examination of socially constructed meanings that explain the world around us.Footnote 49 Thus this article’s application of a rhetorical analysis to an international legal actor contributes to an emerging interdisciplinary dialogue.
The article’s method recognizes that rhetoric is instrumental to persuasion and hence proceeds by way of an Aristotelian analysis. For Aristotle, rhetoric was the power to observe the available modes of persuasion of any particular matter.Footnote 50 The three classical modes of persuasion include: enhancing the credibility of the speaker (ethos), maximizing the effect of the rhetoric on the emotional dispositions of its audience (pathos), and finally using deductive arguments to demonstrate that a particular position is true (logos).Footnote 51 The present analysis adopts these modes as a framework to analyze the legalism within the Office’s public communications.
Recognizing the category of public communications acknowledges its collective importance to an organization’s ‘public relations’. The practice of public relations is concerned with the ‘common meeting ground’ between an organization and society at large and includes the management of organizational reputation by a cumulative effort to influence the opinions and behaviour of relevant audiences.Footnote 52 In respect of the Office, the Rome Statute is wholly silent on the agenda of public relations. Instead, it is left to the Court’s Registry to strategically co-ordinate and manage the Office’s public communications across three integrated spheres of activity: external relations, public information and outreach.Footnote 53 The latter two activities are processes; public information is about articulating the principles, objectives and activities of the Court to the public at large and to target audiences, and outreach is about establishing a two-way communication with affected communities that can promote support for the Court’s work. However, crucially, the strategy insists on the integration of activities because they are ‘complementary and involve mutually reinforcing goals, priorities and messages’.Footnote 54 The Court-wide public information strategy also emphasizes the importance of co-ordination and harmony with outreach activities.Footnote 55 Thus, the Court’s public communications are based on activities that prioritize the significance of having a consistent message towards affected communities.Footnote 56
These communications can be motivated by any number of concerns or priorities; they can be made through various media (e.g., directly published online, by media channels or through the spoken word) but are essentially connected in being made public. These include media interviews, statements and speeches but one might also add an equally under-scrutinized form of communications: policies. The Office’s published policies are motivated by transparency and the discharge of its mandate by way of explaining its activities, legal criteria and decisions. These policies continue and develop the two-way communication between the Office and affected communities.Footnote 57
Nonetheless a category of ‘public communications’ can create some methodological limitations. Notably, it does not recognize – precisely – the aim, context, medium and justification of the communication. For instance, scholarship has often highlighted the importance of medium, pithily captured by ‘the medium is the message’.Footnote 58 Furthermore, it does not acknowledge the importance of the ‘rhetorical situation’, namely, that rhetoric seeks to modify a set of exigencies produced by persons and/or events.Footnote 59 The category also excludes the more forensic attention paid to rhetoric’s arrangement, delivery and style including its particular argumentative scheme – a ‘topoi’Footnote 60 alongside the use of prose and persuasive devices, e.g., analogy, metaphor or metonym.Footnote 61 Put simply, a category of public communications masks the fact that rhetoric is ‘always for, and adapted to a specific cause and a specific occasion’.Footnote 62
These may be reasonable reservations but the present aim is not to analyze the persuasiveness of every instance of legalism accounting for its aim, context, medium and justification. Indeed, to do so would ignore the fact that definitive judgements about persuasion require an empirical assessment (of individual opinions), that, in any case, is notoriously difficult to conduct.Footnote 63 As Kant argued, actual persuasion is bound up in the character of the individual subject; it only has private validity and is objectively difficult to rationalize.Footnote 64 By contrast, this article’s starting point is legalism, and its widespread expressions within a range of the Office’s public communications. In so doing, the analysis recognizes that rhetoric and ideology are intertwined; both possess their own strategy and style of persuading a defined audience.Footnote 65 Thus, an analysis of the persuasiveness of legalism enables an assessment of the ideology of legalism too. The article turns to clarify legalism before turning to its expressions within the Office’s public communications.
4. Legalism
Most interpretations of legalism begin with the writing of Judith Shklar. Her critique in Legalism: Law, Morals and Political Trials has been described as offering the ‘single most significant reckoning with the politics of international criminal justice ever written’.Footnote 66 In her view, legalism is the ‘ethical attitude that holds moral conduct to be a matter of rule following and moral relationships to consist of duties and rights determined by rules’.Footnote 67 For legalists, rules are viewed as the only guide to decision-making, and compliance with them is a moral mode of being in the world.Footnote 68 Thus, legalism ascribes greatest priority to present laws (lex lata) and compliance with them is seen as a clear black or white, yes-or-no judgement.Footnote 69
Nonetheless, many references to Shklar tend to overlook her distinction between two kinds of legalism. First, a ‘professional legalism’ as the operative ideology of lawyers; internal to the legal profession and comprised of beliefs, habits and tendencies of rule-orientated lawyers. This kind of legalism consists of thinking of law as simply ‘there’, as a discrete entity, and is rooted in the legal profession’s view of its own functions.Footnote 70 Second, a ‘political legalism’ as an external projected ideology; one that is inserted into complex and diverse political environments that contain multiple, and often competing ideologies.Footnote 71 Here, legalism interprets politics as the antithesis of law; law is neutral, objective and best orientated towards justice; politics is rejected as competitive, egotistical and vague.Footnote 72 Of course ‘political legalism’ produces a dichotomy that exposes an assumption: legalism views itself as ‘doing or solving’ political dilemmas better than politics itself can. This is the claimed virtue of legalism; it presents itself as an improvement on politics but, in so doing, disregards the connection that law has with political values because its very premise is to divorce or hide those values.Footnote 73
Before turning to the Office’s public communications, there are some fundamental explanations for a recourse to legalism. First, the Prosecutor is a member of an ‘interpretive community’ of international lawyers that possesses a set of cultural assumptions and beliefs that would admit a vocabulary of legalism as a matter of common sense.Footnote 74 This community is encompassed within an ensemble of international actors, or a broader ‘epistemic community’ (e.g., academics, campaigners, civil society, diplomats) that gathered at the Rome Conference. Common to both communities is the use of legalism as the only ‘correct and proper’ way to think (and speak) about international criminal law.Footnote 75 Second, the articulation of legalism generally prevails across international law, and is arguably a symptom of what Martti Koskenniemi calls managerialism. For Koskenniemi, managerialism involves international lawyers placing exclusive attention on compliance with rules and technocratic practices, rather than having a meaningful engagement with the reasons why such rules and practices exist, and the (political) purposes they ultimately serve.Footnote 76 In this sense, international lawyers’ use of legalism is, by nature, a deeply embedded community and managerial practice.
There have been innumerable expressions of legalism within the Office’s public communications. These have occurred in various contexts, over an indeterminate period of time and with variable frequency. It is not within the present scope to explore them all, or to attribute them, more or less, to the tenure of either Luis Moreno Ocampo or Fatou Bensouda. For present purposes, Judith Shklar’s classification of legalism can help to organize its most common expressions.
Shklar’s account of professional legalism, referring to the practice of law, or its own discrete science,Footnote 77 helps to explain three identifiable expressions. Taking the first, the Office reinforces a Court-wide message that it is a judicial institution, with an exclusive judicial mandate. The Court’s website stresses that it is free from political control and is only dictated by the legal criteria found in treaty texts.Footnote 78 The content of webpages affirms that the Prosecutor is independent, impartial and that ‘political considerations never form part of the Office’s decision making’.Footnote 79 Secondly, and most commonly, legalism is used to demonstrate a commitment to professional impartiality. The Prosecutor, in many speeches, has been keen to declare she makes no decisions out of fear or favour.Footnote 80 In so doing she, in adherence to the law’s neutrality and objectivity, often stresses that ‘politics and political considerations have no place and play no part in the decisions taken by the Office and in the execution of its independent and impartial mandate’.Footnote 81 In addition, the Prosecutor in newspaper editorials, and in declared policy, has reinforced legalism by insisting that the Court’s mandate will ‘never be compromised by political expediency’.Footnote 82 More subtly, the third expression captures positivism in terms of jurisdictional limits and terminological interpretation. For instance, the Prosecutor, in person and in press releases, has stressed that she is only guided by the Rome Statute and often cites the Preamble to elaborate on her aims.Footnote 83 Hence, the Prosecutor explains the boundaries of her decision-making by implicitly articulating the rules of treaty interpretation.Footnote 84 Such an approach also distinguishes the Prosecutor’s professional identity; as former Prosecutor Luis Moreno-Ocampo once stated: ‘I follow evidence. I’m a criminal prosecutor; I’m not a political analyst’.Footnote 85
Shklar’s account of ‘political legalism’ helps explain two further expressions. Political legalism is about casting law as an uncompromising culture of rule-following that is sustained by depicting politics as irrational and essentially ‘a species of war’.Footnote 86 Gerry Simpson describes this version as ‘transcendent’ in its desire to implicate politics by law’s ruination.Footnote 87 In this regard, the Office makes a concerted endeavour to elevate the law’s significance as a means to deflect, offset (and remove) any negative association with politics. Thus, the Office uses legalism normatively, articulating law in terms of its contribution to political and social goals particularly in the field of conflict resolution and crime prevention. The use is captured pithily by the words of former Prosecutor Moreno-Ocampo, ‘… experience has taught us that law is the only efficient way to prevent recurrent violence and atrocities’.Footnote 88 In another speech Fatou Bensouda provided a more striking example, complemented by a literary use of a synecdoche,Footnote 89 presenting the ICC as ‘the law’, alongside the imagery of force:
I firmly believe in the power of the law to stop and prevent violence, and to pacify communities gripped by conflict. I believe in the law as an instrument to affect constructive change. Through the might of the law, we can highlight the brutality and barbaric nature of these crimes; we can hold perpetrators accountable, and, crucially … [establish] new norms of acceptable conduct.Footnote 90
The Prosecutor also uses legalism creatively in casting the law as an agent of normative political change and thereby removing the implication that law is tainted by undesirable bias against states. These include, somewhat incredulously, speculating about the Court’s role in guaranteeing peaceful elections on the African continent.Footnote 91 In particular, and more frequently, the Prosecutor uses law as a metonym for justice and has expressed that the ‘law sets one standard for everyone … and provides justice for all’.Footnote 92 This extends to describing the Court as a ‘credible, professional, independent instrument of international justice’Footnote 93 but also places the Court as the arbiter of providing a ‘real justice [that] has to be guided solely by the law and the evidence’.Footnote 94 Taken in context, the Prosecutor’s rhetoric consistently encapsulates justice by a frequently-aired, ‘protected embrace of the law’.Footnote 95
The final expression of legalism finds expression in John Austin’s command or coercive orientation of law.Footnote 96 Legalism has a ‘strong-arm’ effect that capitalizes on law’s ability to produce a monopoly of force and coerce compliance from other (political) actors.Footnote 97 Taking the words of former Prosecutor Ocampo, ‘other actors have to adjust to the law’Footnote 98 and, in the language of Fatou Bensouda, there is a dogged determination to use the ‘full power of the law’.Footnote 99 In this guise the Office’s rhetoric presupposes the significance of the Court’s role in conflict-affected societies and the need for compliance. For example, in a speech in 2014, Fatou Bensouda stated:
The ICC is a fact of life and all players in the international arena must adjust their behaviour to the reality that this new player in the international scene is committed to fulfilling its mandate of ending impunity for mass crimes that tear at the fabric of society and threaten the peace, security and well-being of the world.Footnote 100
Here, the Office’s rhetoric reinforces the mandatory nature of the Rome Statute and how its very existence ‘impact(s) on conflict management efforts’.Footnote 101 As Office policy elaborates, ‘The issue is no longer whether we agree or disagree with the pursuit of justice in moral or practical terms. It is the law’.Footnote 102 Taking more nuanced examples, Fatou Bensouda has regularly warned of the consequences of not supporting the ICC. For instance, she has contended that ‘backing the ICC is to support humanity’s progress towards a more just world’Footnote 103 and cautioned that ‘without the ICC, we will regress into an even more turbulent world where chaos, volatility and violence take the upper hand as inevitable norms’.Footnote 104 The implication of such rhetoric is that those who do not comply with the Rome Statute are on the ‘wrong side’ and either accept or are indifferent to the impunity and violence the Court is helping to tackle.
Admittedly, these expressions of legalism are accompanied by the adjacent language in the communication but this does not detract from the fact that legalism is undoubtedly one of the Office’s ‘key messages’; clear and short statements that are consistently reiterated.Footnote 105 This resonates with the Court’s Integrated Strategy and it’s stress on ‘core message themes’; accurate but simple messages that reach a non-specialist audience that explain the need for co-operation and/or situate the Court as part of the international justice movement.Footnote 106 Such core messages presuppose an organization’s intent to use them to persuade its target audiences. The article now extends Shklar’s critique and exposes the limits of legalism’s persuasiveness vis-à-vis affected communities.
4.1. Ethos
For Aristotle the first rhetorical mode of persuasion concerned the character of the speaker or their ethos.Footnote 107 This mode is concerned with persuasion that enhances the speaker’s credibility and ‘must come about in the course of the speech, not through the speaker’s being believed in advance to be of a certain character’.Footnote 108 Aristotle clarifies that a speaker’s existing credibility, originating within the community to which she belongs, is the strongest component of persuasiveness (characterized as their ‘situated ethos’).Footnote 109 This ethos includes their professional expertise, reputation and even what Max Weber called ‘charismatic authority’ – a set of exemplary personal leadership qualities.Footnote 110 Nonetheless, Aristotle’s target is the causal flow in the opposing direction, namely, whether the speaker’s rhetoric can elevate their situated ethos in the eyes of the audience (their ‘constructed ethos’).Footnote 111 Thus, in the analysis of rhetoric, the speaker’s constructed ethos should, in general, elevate or remind the audience of their situated ethos.
The central question that follows is whether legalism can elevate the Prosecutor’s situated ethos. One can answer this question by asking why legalism is attractive to lawyers. The answer, almost certainly, is found in its essential content: law. As Kieran McEvoy argues, the temptation of legalism lies within the seduction of law; its affinity to values such as certainty, objectivity and rationality.Footnote 112 Furthermore, legalism helps articulate an ordered world where the law is glorious and superior because of its presumed civilizing and rationalizing function.Footnote 113 This function provides law with a positive force that is boosted by the condemnation that unlawful actions attract. On these terms, it is easy to see how the use of legalism could elevate the Prosecutor’s situated ethos.
This claim can be further evidenced by way of illustrating her use of professional legalism. Primarily professional legalism valorizes the principle that lawyers mechanically apply their expert idiom to whatever (political) reality is presented to them.Footnote 114 It conveys ‘safety’ and is associated with lawyers being guardians of procedural correctness, e.g., it honours the rules of sub-judice.Footnote 115 More generally, it captures legalism’s historical symbolism to use law (rather than violence) in response to criminality and, evokes Robert Jackson’s celebrated Nuremberg address.Footnote 116 Finally, and unquestionably, professional legalism captures international criminal law’s ‘progress narrative’Footnote 117 that culminated in the creation of the ICC; a legalistic model of justice that transcends politics.Footnote 118 This narrative idealizes the delivery of an ‘impartial, majestic justice’Footnote 119 that is based on the Court’s operational distance from the political contestations of domestic societies.Footnote 120
However, much of this appeal depends on precisely how the Prosecutor’s situated ethos is understood. Legalism is appealing if one understands her ethos in traditional terms: apolitical, conservative, client-based and based on procedural probity.Footnote 121 However, conversely, the Prosecutor’s situated ethos can also be understood in deeply political terms, one more akin to a ‘cause-lawyer’: a lawyer with an activist mission to trigger social change in societies.Footnote 122 As a cause-lawyer, the Prosecutor contributes to the Court’s goals including the prevention of crimes, and the promotion of peace, stability and reconciliation in affected communities. Her conduct encompasses the promotion of domestic prosecutions, engaging with civil society groups and advocating publicly on behalf of victims. These are all deeply political activities. Crucially, her use of political legalism, cham pioning law in the achievement of justice and conflict resolution, appeals more to a cause-lawyer ethos; an identity deeply woven with political and social activism.Footnote 123
Here lies the problem; the coexistence of her traditional and cause-lawyer identities can produce an unclear message about her relationship to politics. Her traditional ethos is based on a premise of political detachment, but her cause-lawyer ethos is based on a premise of political attachment. There is no comfortable equilibrium; her expressions of political legalism dilute the appeal of professional legalism, and her use of the latter betrays the fact that, outside the courtroom, she does not act or talk like a traditional lawyer but is closer to that of a campaigner. In other words, both types of situated ethos generate a friction with one another and produce a cognitive dissonance at the centre of the Prosecutor’s identity. From the perspective of affected communities that are the recipients of the Prosecutor’s rhetoric, her expressions of legalism are likely to confuse because they make opposing claims about her political positioning. Thus, one can conclude that legalism’s persuasiveness about the Court’s political independence, makes a much weaker appeal to ethos than is first assumed.
4.2. Pathos
The purpose of pathos in rhetoric is to elicit emotional support among the audience at which the rhetoric is targeted.Footnote 124 Pathos is about the stirring of an emotional disposition and consequently rhetoric must recognize that the judgements of an audience will differ when they are aggrieved or pleased, sympathetic or in a state of revulsion.Footnote 125 For Aristotle, the rhetorician must understand a range of emotions (e.g., anger, pity, fear, favour, and envy) to help inform the use of rhetoric that, ideally, can heighten its degree of persuasion.Footnote 126
To address whether legalism can elicit emotional support among affected communities, one must acknowledge the indeterminacy of ‘emotional support’. Emotion is a complex, psychological and highly subjective phenomena. Hence rhetoric’s appeal to emotion can only be based on a general presupposing of an audience’s perceptions; what they will perceive positively and be willing to emotionally accept. Of course, no single audience is a tabula rasa but is, in fact, comprised of individuals that carry socially conditioned beliefs and convictions.Footnote 127 Similarly, the degree and nature of ‘support’ is open to interpretation. Rhetoric can attract a range of support, although it need not be of a degree that conclusively leads to persuasion but should, as a minimum, establish a foundation for persuasion. This foundation may rest on ‘diffuse support’; a reasonable and stable acceptance of an institution but that does not always extend to satisfaction with its every decision.Footnote 128 However, in this sense, legalism’s appeal to pathos within affected communities is likely to be limited.
First, legalism’s primary appeal is to notions of legality but it lacks a commensurate appeal to perceived legitimacy wherein emotion is located. Legality is the belief in the validity of a statute, rationally created rules and the discharge of statutory obligations.Footnote 129 By contrast, perceived legitimacy is a psychological acceptance or belief in an entity’s authority and right to rule.Footnote 130 It is a phenomenon shaped by a range of causes that help to produce an individual’s perceptions. These can be described as audience ‘anchors’Footnote 131 and can be based on their ethnic, political, religious or social affiliations. These anchors, in turn, can trigger cognitive biases and emotionally-driven reasoning that hardens resistance towards messages countering those anchors.Footnote 132 Rhetoric should, nonetheless, target those anchors because emotional persuasion requires altering sets of internal assumptions that make up a listener’s frame of reference.Footnote 133 In this light, legalism offers too little as its privileging of legality is, at best, only a component of perceived legitimacy but does not exhaust it. In so doing, legalism circumvents the complex blend of affiliations that make up individual perceptions within affected communities.Footnote 134
Second, and relatedly, legalism’s limited appeal to emotion can be attributed to its very uniformity. Legalism’s attraction is that it is a general ‘one size fits all’ rhetoric that speaks to multiple audiences at the same time. However, the Office’s prevalent usage imagines a single, and rather abstract audience; something that finds expression in the concept of a ‘universal audience’ – namely a systematized construction in the mind of the speaker of an ideal audience capable of assenting to its claims.Footnote 135 This being the case, the universal audience is not a concrete or material entity (with typically diverse sectional interests) but is constructed by the rhetoric (and the speaker) itself.Footnote 136 Leaving the conceptual concerns aside, one could defend the uniformity of legalism if it had general emotional utility; however, it is not clear that it does have such utility. The appropriate starting point for such a determination is to identify the emotion legalism seeks to inspire. In the most part, legalism makes the same general assumption that its audience lacks confidence in the Court’s detachment from politics. The question thus becomes whether legalism does inspire such confidence among affected communities.
Aristotle explained confidence as requiring ‘the remoteness of fearsome things and the proximity of salutary ones’.Footnote 137 In other words, the near presence of something can inspire a belief in the certainty or favourability of something, combined with the distancing of whatever causes distrust or a lack of belief.Footnote 138 However, on these terms, it is not at all convincing that legalism does inspire confidence but, rather, can become somewhat self-defeating. It is the perception of the Court’s politics including its bias that is legalism’s target for persuasion. However, parad oxically, the use of legalism and its combined stress on law and the Rome Statute is, if anything, likely to remind affected communities of the Court’s spatial and moral distance. In so doing, legalism maintains the Court’s distance, rather than helping to collapse it and thus, perpetuates the existing space for distrust about its politics.
There is further reason to doubt legalism’s ability to inspire confidence. Lying within legalism is an emotional deficit, one it produces by encouraging a disconnection between the law and the political. However, in the space between law and politics lies the value that is of most emotional concern to affected communities: justice. For legalists, the pursuit of justice is articulated and understood as the intensification of legalism.Footnote 139 By contrast, and at a minimum, affected communities are likely to perceive legalism as insufficiently expressive of justice because justice is pluralistic, and politically and socially constructed. In conflict-affected societies, many non-legal mechanisms and strategies (e.g., truth and reconciliation commissions,) can contribute to justice processes. To argue, as legalism does, that law has a monopoly on justice often leads to international criminal tribunals overselling their ability to achieve truth and reconciliation and other goals associated with post-conflict nation building.Footnote 140 Legalism, thus, tends to engender perennial disappointment; its preference for a simple answer cuts through the moral ambiguities of justice.Footnote 141 For the potential victims of crimes, the position is aptly surmised by Kamari Maxine Clarke: ‘We ask for justice, you give us law’.Footnote 142 Hence, the resulting impact of legalism on affected communities is likely to do little to build confidence; it over-promises and subsequently under-delivers.
One can predict that legalism is unlikely to produce sufficient pathos to persuade affected communities of the Court’s political independence. This is not to say that legalism has no emotional appeal; one could argue that legalism inspires emotional certainty. This might be appealing to some within affected communities that have endured the sheer lawlessness that can give rise to the commission of atrocities. But even then, legalism is ill-equipped to appeal to pathos because it closes the space for emotional acknowledgement in its urgency to point to law as a remedy. Put another way, it is inextricably bound with the telos of rhetoric: victory rather than cure.Footnote 143 In contrast legalism is far better-equipped at reinforcing the pre-existing pathos of idealistic international criminal lawyers that refuse to acknowledge the Court’s complex political dimensions.Footnote 144 Undeniably, legalism epitomizes the Office’s own organizational ‘personality’ and is symptomatic of its own ideo logical ‘echo-chamber’.Footnote 145 One can conclude that legalism is highly persuasive for communities of international lawyers disposed to agreement, but will generally lack persuasiveness within affected communities that do not share such a disposition.
4.3. Logos
Aristotle’s principle of logos pertains to the central principles of logic, reason and proof.Footnote 146 He drew a distinction between logic and rhetoric; logic is rooted in arguments based on certainty, reason and truth, and rhetoric is rooted in persuasive techniques about subjects based on possibilities and probabilities.Footnote 147 However, for logic to be persuasive, he stressed the role of rhetorical syllogisms, (or more specifically an enthymeme) and the demonstration of reasoning to show that something is the case.Footnote 148 Building on his previous work on dialectics, Aristotle argued that syllogisms are based on a process of deduction.Footnote 149 Deductive arguments thus tend to adopt a ‘major or minor premise-conclusion’ structure. A common example of this is ‘All men are mortal. Socrates is a man. Therefore Socrates is mortal’.Footnote 150
However, as Aristotle discussed, rhetoric often omits certain premises that would otherwise be significant in dialectical practice.Footnote 151 One could not expect the audience of rhetoric to follow through several deductive steps, so a general premise can be located within a sign argument. A sign is an inductive presentation of something existing that the audience, a priori, needs to accept, so that a syllogism can be derived and a valid deduction established. To provide Aristotle’s example, ‘He is ill, since he has a fever’. This is an example of a syllogism that cannot be refuted if the sign of having a fever is true, as, ergo, he must therefore be ill (as it is not possible to be otherwise).Footnote 152
Turning to the Prosecutor’s use of legalism, one may analyze its rhetorical structure in the following way. First, the implicit sign argument is that the law is neutral in all matters. Flowing from the sign, is an indication of legalism’s major premise that, the law rejects the political. Thus, the intended conclusion from this premise is that the Prosecutor’s decision-making cannot contain political factors and hence any given decision is not political. At first glance, this syllogistic structure may be deductively persuasive, but the underlying question is the extent to which both the sign argument and the major premise withstand scrutiny. If both the sign and the major premise are demonstrably questionable, then the persuasiveness of legalism is commensurately reduced.
In relation to the sign argument, to accept that the law is neutral ignores the extent to law is a technique for ‘ends prescribed by politics’, or simply, that law is politics transformed.Footnote 153 It is no news that there is a politics of international (criminal) law,Footnote 154 but what is critical is how the law’s logic is perceived. Here, the perception the sign argument is attempting to maintain is unlikely to be sustainable. Inevitably, individuals within affected communities, or simply the ‘man in the street’, tend to personify the law by questioning its very origin in the political order.Footnote 155 In short, ‘… the law is not an abstraction. It cannot be understood independently of the political foundation on which it rests and of the political interests which it serves’.Footnote 156 Thus, a given perception of law is shaped not only by one’s background and personal perspective, but crucially, the political system in which law exists.
Of course, the evaluation of the major premise does not escape a similar set of criticisms. The law is not perceived in a vacuum and thus legalism (and its inherent minimalism) is likely to be perceived as simply endorsing the structural biases of the Court. If one is critical of these biases and views them as part of the problem, then, the only concern is whether institutions are good and the decisions they make are the right ones.Footnote 157 Here, legalism is also weak because it is inherently unable to provide an answer to the most relevant normative question. The question legalism prefers to answer is simply whether the law admits the political, but, the more normative question being asked – that legalism fails to answer – is what sort of politics is legalism maintaining?Footnote 158
Further evidence of legalism’s logical weaknesses can be located in the Prosecutor’s use of professional legalism and its insistence that rule application and rule following does not accommodate political factors. The insistence, however, unravels if one looks closely at the rules themselves. Of course, one might argue that all rules provide general categories into which particular (political) situations need to fit.Footnote 159 This being true, it is undoubtedly the case that the Court’s jurisdiction is based on a set of rules that are intrinsically permeable to political considerations.
Principally, the Office’s selections all require a degree of political assessment. These begin with whether to accept a referral to the Court by either a government (including a self-referral), or by the UNSC in accordance with Chapter VII of the UN Charter, or whether to initiate an investigation propio motu (on his/her impulse).Footnote 160 At this stage the Office may make a political judgment in selecting a situation and often resorts to making a determination about whether the situation is of ‘sufficient gravity’.Footnote 161 Furthermore, under Article 53(1)(a)-(c) of the Rome Statute, the Prosecutor must consider admissibility, i.e., the tests of ‘complementarity’ and ‘gravity’Footnote 162 and determine whether to decline to proceed with an investigation or prosecution ‘in the interests of justice’.Footnote 163 By nature these are judgements that cannot be based on applying legalistic criteria, but are shaped by political sensitivities.Footnote 164 These sensitivities are also incorporated in the final choice of defendant, who, in principle, ought to hold ‘the greatest responsibility’ for the most serious crimes.Footnote 165 And yet, selecting the ‘best’ individual to prosecute requires a blend of objective and subjective determinations that reconciles available evidence, enforcement capability, and other prosaic questions such as how limited resources should be directed.Footnote 166 Moreover, international criminal prosecution policies (and therefore selection decisions), inherently, account for the social context of conflict settings.Footnote 167 Thus, the logical weakness of legalism’s major premise is its betrayal of the Prosecutor’s decision-making realities; it masks the ‘politics in law’ by presenting law as an autonomous and independent framework but politics gives the Prosecutor her ‘rough content’ and driving force.Footnote 168 To put it rather bluntly, legalism presents a vision of law ‘as legalism wants it to be, not as it actually is’.Footnote 169
It might be said these logical weaknesses only apply in reference to professional legalism and the same cannot be said with respect to political legalism. However, the Prosecutor’s use of political legalism tends to produce its own fallacy. Its use is based on improving the state of politics by advancing the law as a remedy for justice and conflict resolution and by mandating compliance and co-operation from other political actors. However, political legalism’s premise is to simultaneously dismiss and marginalize politics and so cannot, effectively, improve the environment in which politics is actively operating.Footnote 170 In fact, this kind of legalism maintains a pretence of political agnosticism so it can champion law as the ‘better’ politics but this bias towards formalism simply reflects the law’s value (and misery) of being the surface upon which political preferences are contested.Footnote 171 In this sense, the Prosecutor’s use of political legalism is completely circular; it reproduces the tensions between law and the political, rather than helping to address those tensions.
There are, thus, significant reasons to doubt that legalism provides a logical or rational explanation of the Court’s political independence. That does not mean to say, that which is demonstrably rational is always persuasive. Rationalism does not have a monopoly on what someone believes to be true. Truth is contested and incommensurable; an individual may not believe a rational truth in favour of other ‘truths’ that subjectively conforms to emotional disposition. For instance in conflict societies where myths and revisionism are rife, people may be more willing to believe emotional accounts that have come to acquire a ‘logic of their own’.Footnote 172 On that basis, and as explained earlier, legalism lacks an emotional resonance that has come to, increasingly in today’s society, drive persuasion.Footnote 173 Furthermore, as this section identified, legalism lacks sufficient logical support and, at best, enjoys only an ‘appearance of veracity’ that is likely to further limit its persuasiveness among affected communities.
5. Conclusion and recommendations
In today’s political climate the motives behind rhetoric are increasingly the object of distrust, particularly, its ability to confuse claims about objective truth. One could argue this is merely the continuation of a historical trend; from Plato to figures of the enlightenment, many have subscribed to the view that rhetoric is a ‘machinery of persuasion [that] … can never fail to rid one completely of the lurking suspicion that one is being artfully hoodwinked’.Footnote 174 At the centre of philosophical distrust is the belief that rhetoric is inherently antagonistic to rationalism. This article has not argued that rhetoric ought to defeat rationalism but rather began, as Aristotle argued, on the premise that rationalism depends on rhetoric if facts and logic is to be persuasive.
In this light, the article outlined that, in the context of a lack of trust in the Court’s independence, the Office of the Prosecutor has adopted a rhetoric relying on legalism. A rhetorical analysis of legalism reveals it makes a weak appeal to ethos, has a limited appeal to pathos, and, perhaps most troublingly, does not possess sufficient logos to demonstrate its premise is true. Legalism, as the art of rhetoric, has limited persuasiveness and leads to the conclusion that it is a weak tactic of legitimation. Legalism, as a statement of fact, lacks verifiability and leads to the conclusion that its promises are hollow. In combination, one might contend that instances of legalism are disingenuous and utterances of a platitude that can have a delegitimizing effect; the exact opposite of what is intended. Just as soberly, it helps make the case that legalism, as the progress narrative of international criminal law, is becoming well-worn.
It is hoped this article may stimulate renewed research in the direction of communication strategies, and the content and effect of rhetoric on specific audiences. It follows that this article may also have implications for other international legal actors and institutions; specifically, their rhetoric in public communications, attempts at legitimation and their desire to improve perceived legitimacy within essential audiences. The political independence of international institutions is all too frequently attacked and their response to such attacks often requires rhetoric that accommodates persuasion and rationalism – qualities that are not mutually exclusive but should be made to depend on one another. Otherwise, and using the Office as an example, if rhetoric was to prioritize persuasion then it would dangerously invite the use of subterfuge and could fundamentally undermine the Court’s legitimacy. Alternatively, if rhetoric were to prioritize rationalism then it would admit the Court’s real political dependencies, but that would undermine the effectiveness of any persuasion strategy and could be no less detrimental to the Court’s legitimacy. Admittedly, those intent on seeing bias will locate every means to do so, and other actors (e.g., the media or political elites) may be more effective at influencing public opinion. Nonetheless, however futile the endeavour, it does not follow that institutional persuasion strategies should be abandoned. The consequences of doing so are likely to be considerably more damaging than a strategy that has only a slight or modest impact. Put simply, silence is unaffordable. In this light, the following recommendations may help the Office improve its rhetoric towards those communities that are essential to the Court’s perceived legitimacy.
First, the recognition of legalism’s limited persuasiveness does not mean that the Office should abandon it within its public communications. To recognize legalism’s limits of persuasion is not to argue for its premature removal as changes in organizational rhetoric should occur incrementally. Rhetoric may need to be sustained in the medium term in spite of limited persuasion, e.g., for continuity and consistency in messaging. In any case, in spite of its flaws, displacing legalism is no easy task, for it is deeply entrenched within the minds of international criminal lawyers; it is not only a way of saying but a habitual way of acting and thinking.Footnote 175 That being the case, the Office, in the interim, might carefully reflect on its language surrounding legalism, and the way in which it, generally, can compensate for legalism’s shortfall in ethos, pathos and logos. This could include a renewed thoughtfulness as to diction, narrative and style, and further explanation as to the Court’s jurisdiction. The Office’s desire to maintain legalism and be ‘on message’ does not exclude a more imaginative exercise of rhetoric elsewhere.
Second, the Office should commit to a deeper understanding of emotional anchors within affected communities (including those that originate in ethnicity, nationality, political preference etc.). With a more judicious use of empirical research and survey data, her public communications should specify exactly the audience perceptions that she intends to speak to, and her rhetoric can thus be more context sensitive and culturally-specific.Footnote 176 Her communications can then be subject to later empirical evaluation as to an alteration or change in opinions. This is not an argument for her to pander to emotions but to genuinely understand them, and so, develop a more meaningful two-way dialogue. This might require the development of counter-narratives or stories that defend the Court by speaking to ‘head and heart alike’.Footnote 177 This is no doubt challenging, but if the Office’s rhetoric wants to compete in what it sees is a ‘marketplace of falsehoods’ about the Court, then, it must start to meaningfully recognize the emotional imperatives of those to whom the rhetoric is addressed.
Finally, the Office’s use of persuasive rhetoric is not an end in itself. Persuasive rhetoric will not mean that which is criticized will be improved, or indeed, forgotten. Rhetoric is accompanied by what a listener sees and if reality significantly diverges, then rhetoric will become cyclic and forever doomed to disappoint; generating false expectations and re-entrenching cynicism. For some critics, the Court may never be able to demonstrate its political independence and even, its ultimate worth. Be that as it may, current evidence suggests there is a compelling case for the Office to manage expectations with rhetoric that is humble in its promises. And so, the Prosecutor would be wise to avoid striking triumphalist tones that merely detaches the Court from the communities that are its raison d’être.
