27 Apr “No Neutral Men”: Sharma’s Reductionist Response to My Post
Dhruv Sharma responded today at Justice in Conflict to my recent post arguing that the next ICC Prosecutor should come from the P-3. I wasn’t planning on responding, because the post generally caricatures what I wrote. But I have to say something about one of Sharma’s arguments that is particularly mistaken and dangerous. Here is what he writes after noting — correctly, of course — that the US has never been particularly cooperative with the Court:
Against this background, Heller hopes for cooperation from such State merely on the basis that one of its nationals leads an Organ of a Court to which it is not even a party. Conversely, this incentive for a State to cooperate can be turned on its head to argue a potential bias on part of the said Prosecutor in favour of the Home State (or its Global North allies). It is perhaps helpful to reflect upon the axiom that, “while there are neutral countries, there are no neutral men”.
Let’s ignore the fact that I specifically disclaimed the idea that appointing a P-3 Prosecutor would somehow magically guarantee her home-state’s cooperation — especially in the case of the United States. Instead, I want to focus on Sharma’s belief that because “there are no neutral men,” a Prosecutor from the P-3 would be more likely to be biased in favour of her home state than a committed investigator of its wrongdoing.
I think we can stipulate that there are no neutral men — or neutral women. Sharma’s blithe comment, however, is still deeply troubling. To begin with, it is a strange political theory indeed that insists states can be neutral but individuals cannot. Sharma doesn’t bother to explain how a state can transcend the supposedly inherent partiality of its nationals — and his claim is all the more remarkable when we consider that the rest of his post views state behaviour through the lens of a realism so reductionist that it would make Kissinger blush.
More importantly, insisting no individual can be neutral tells us nothing about how an individual will be biased. In that regard, Sharma’s political psychology is as reductionist as his understanding of state behaviour. Sharma provides not even a scintilla of evidence in support of the idea that a prosecutor from the P-3 would more likely be biased in favour of her home state than a searching critic of it, and his reductionist psychology is contradicted by the fact that there are currently thousands of Americans, Brits, Aussies, Canadians, etc. who are currently devoting their professional lives to holding their home states accountable for international crimes. Some of those people even work at the ICC! Are they neutral? Of course not. But they are non-neutral in favour of international justice, not impunity for the state in which they happened to be born.
In fact, there is reason to believe — and this was the basic point of my post, which Sharma ignores — that individuals from the P-3 may be uniquely well-suited to investigating crimes committed by their home states, given their familiarity with the political, economic, and social structures therein. After all, one of the most compelling criticisms of the ICC’s “distant justice” is that OTP investigations, in Africa and elsewhere, have failed precisely because the OTP has not relied heavily enough on local knowledge. Does the same not apply to an investigation of crimes committed by a powerful state? Who better to oversee an investigation of those crimes than a Prosecutor with decades of legal experience in that state and the kind of insider cultural knowledge that comes from being one of that state’s nationals?
Finally, it is worth noting that Sharma’s psychological reductionism is particularly unconvincing in the context of the Prosecutor. It might be possible for the US or Britain or France to insert a pro-impunity sleeper agent into the lower ranks of the OTP, where vetting largely consists of a CV and a series of interviews. But it beggars the imagination to believe the ASP would elect a Prosecutor from the P-3 who intended to use her power to protect her home state from investigation. Indeed, as Charles Jalloh and Sabine Nolke recently explained on this blog, the system for electing a Prosecutor is precisely designed to avoid such an outcome.
There are many legitimate criticisms of my belief that the ASP should elect a Prosecutor from the P-3. That “while there are neutral countries, there are no neutral men” is not one of them.