Robinson: A Response to William Schabas and a Reflection on Discursive Assumptions: One Vision or Many?

Darryl Robinson (Queen's Univ. - Law) has posted A Response to William Schabas and a Reflection on Discursive Assumptions: One Vision or Many? Here's the abstract:

This article critically examines some of the criticisms leveled by Professor William Schabas with respect to early policies and jurisprudence of the ICC, namely self-referrals and admissibility due to inaction. That examination serves as a springboard for broader observations about discursive assumptions in international criminal law.

One observation is that although discourse focuses on points of disagreement, it is also a vehicle through which the interpretive community implicitly absorbs and acquiesces in countless assumptions and propositions, which limit and shape legal debate.

For example, it is today an almost universally-shared belief that territorial state referrals were ‘not contemplated’ by the Rome Statute drafters and hence that they represent an ‘innovation’. This widespread belief is the diametric opposite of the actual drafting history, which expressly shows not only that territorial state referrals were repeatedly discussed but also that they were not even controversial. The controversy was whether referrals by states parties without an ‘interest’ in the situation should be permitted. Yet the distorted belief about history has framed and shaped the present legal debate. In this way, a straightforward application of the text, in a manner expressly contemplated by the drafters, has generated a significant literature and in opposite discussions about creative re-interpretations. Similarly, the widespread but incorrect conviction that Article 17 contains only the oft-cited criteria of ‘unwilling’ and ‘unable’ has generated a distorted debate about admissibility in inaction scenarios, culminating in unsubstantiated and legitimacy-draining accusations against the Court. The controversy shows the power of collective perception to reconstruct not only history but text itself.

A related observation concerns the tendency of members of the interpretive community to assume a single vision or model of the Court and to impose that expectation onto the Statute. Such arguments are easily supported by invocations of ‘drafters intent’. However, this article recommends skepticism about portrayals of the drafters as having a monolithic vision or of any single philosophy underlying the Statute. Multiple plausible models are compatible with the Statute, and open-minded assessment of the merits and implications of each is needed. Such models may include, for example, an ‘antagonistic’ model, a ‘catalyst’ model, a ‘reverse cooperation’ model and a ‘facility’ model.