ICC Silliness Watch — Media Edition

by Kevin Jon Heller

Regular readers no doubt know that I am obsessed with the media’s seemingly congenital inability to grasp the law and politics of the ICC.  My new favorite comes via the BBC, in an article about the impending arrest warrant for Bashir:

Two Sudanese groups have formally requested the International Criminal Court (ICC) not to issue an arrest for President Omar al-Bashir.

He is accused of responsibility for war crimes and crimes against humanity during the conflict in Darfur.

Experts warn that the motion filed could lead to a delay in the judges’ decision on whether to issue a warrant.

[snip]

But some see the two groups – the Sudan Workers Trade Unions Federation and the recently-formed Sudan International Defence Group – as government proxies.

Who are these ICC “experts” who believe the “formal request” will delay the proceedings against Bashir?  Your guess is as good as mine — the article doesn’t identify any expert by name.  Not that we should be surprised: no one who actually was expert regarding the ICC would offer such a ridiculous warning.  First, “formal request” is a misnomer in itself, because nothing in the Rome Statute permits NGOs to ask the Pre-Trial Chamber to defer a decision on an arrest warrant.  (They are entitled, by contrast, to submit information to the OTP concerning possible crimes within the jurisdiction of the Court.)  Second, why would the Pre-Trial Chamber take a “formal request” by two NGOs — NGOs that might well be GOs, as the article itself acknowledges — more seriously than official statements by China, the African Union, and the Arab League opposing Bashir’s arrest?  Does that make any sense at all?

I expect such tripe from lesser news agencies.  The BBC should do better.

http://opiniojuris.org/2009/01/16/icc-silliness-watch-media-edition/

8 Responses

  1. Ya, after seven years of my preposterous little project, I have to agree…

    The reporting of such things in the press is really dismal.

    { Unrelated note to NSD on another thread where the comments are now closed:

    “Arguing from authority” is an argument fallacy, not a legal citation.

    Sitting somewhere in-between we have the weight of professional or academic opinion, neither of which should count for more than the facts.

    And it never ceases to amaze me how often I’ve found it necessary to remind lawyers that crimes are strictly a matter of factual elements. }

  2. [Charles: Just an aside having nothing whatsoever to do with the substance of the post (hence the brackets): arguments from authority are not by definition fallacious, falling as they do under the rubric of informal logic, thus the argument/dialogue context, among other things, is essential to ascertaining whether or not a particular argument to authority is in fact fallacious. Arguments to authority are sometimes indispensable and unavoidable, and they are in any case an example of a presumptive and defeasible type of argumentation. There’s a helpful discussion of this in Douglas Walton’s Appeal to Expert Opinion: Arguments from Authority (1997).]

  3. { Patrick – What can I tell you? I’m a systems analyst, and you can’t BS a computer. If a proposition is false, all the authority in the world won’t make it true, nor vice versa. I do get that lawyers are much concerned with rhetoric (had to be somewhat concerned with it myself the last seven years too), but you’ll have to forgive me for wishing more of them were better grounded (and more honest) in logic. If you’re interested in the initial exchange between me and NSD, it was on the Phillipe Sands thread…

    http://opiniojuris.org/2009/01/08/philippe-sands-on-torture/#comments }

  4. Charles I understand the point about propositions. And I do recall the thread you cite and agree in the main with your response. I was just concerned that people reading this may think (or reinforce their existing belief that) arguments to authority are everywhere and always fallacious (in which case it would exemplify a formal fallacy, rather than, as it should be, a possible informal fallacy) as something close or identical to that was at one time taught in the textbooks and is still commonly believed in many quarters. Often it’s the case that things aren’t black and white or simply (obviously, invariably, absolutely) true or false (even in ethics!). One can of course say this without in any way endorsing some form of crude moral relativism or denying the importance of objectivity.

  5. Patrick, ya, I get that.

    OTOH, a lot of folks have blind spots where the objectively obvious is concerned, and I can give you a perfect example, Yoo’s OLC memo on Presidential war powers (2001.09.25).
    The problem with it is simple: an argument that proves everything proves nothing.

    I forget when it was made public, but the argument was manifest from the administration’s statements by mid-2002. Yet here we are in 2009, and there are still people willing to defend that memo… I don’t have a lot of patience for such folks.

  6. Kevin,
    It would make sense if, unlike the statements of several states, it was in fact filed before the Court – and here it is.
     
    As claimed in the submission there is no reason why, technically, the organisations cannot be granted amicus status under Rule 103.  This also means that those anonymous experts were correct in that the process may be slowed slightly, although probably for not much more than an afternoon as there seems to be very little of merit – largely lots of political and irrelevant detail about the Prosecutor abusing his mandate and the ICC being poorly received in Africa.  The one bit that could slide is the section on interests of justice, a concept rooted in Article 53 of the Rome Statute, but it’s doubtful whether whether the judges have the power to review this in respect of a request for a warrant.  Personally I can’t see this application getting very far.

    These organisations do seem a little fishy – SWTUF may have links to the Sudanese government (according to Wikipedia at least! – but, hey, this corroborates the BBC article).  But they also have powerful friends.  Sir Geoffrey Nice QC?  Of Milosevic fame?  I remember reading some time ago that al-Bashir was looking to the UK for legal assistance – perhaps this is the end result..

    I’d be grateful for yours or anyone else’s thoughts on this curiosity.

  7. Sorry, my link to the submission is wrong – hopefully this will work:

    http://www.icc-cpi.int/library/cases/ICC-02-05-170-ENG.pdf

    Cheers.

  8. Kevin,

    Perhaps you shouldn’t expect this much from the BBC. I’ve spent a year in Britain lately, and seen the BBC News report on a few British and European judgments of general interest. Not one was explained with any degree of accuracy.

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