The Art of Rhetoric: Perceptions of the International Criminal Court and Legalism

Kotecha, Birju (2018) The Art of Rhetoric: Perceptions of the International Criminal Court and Legalism. Leiden Journal of International Law, 31 (4). pp. 939-962. ISSN 0922-1565

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Abstract

Perceptions of the International Criminal Court have undergone a deep malaise, particularly on the African continent. The frequent target of these perceptions is the Court’s Office of the Prosecutor; its prosecutorial selections have generated the most trenchant criticism of bias. These perceptions, often amplified by political elites and hostile media coverage, risk damaging the Court’s perceived legitimacy among its most essential audience: affected communities. These communities are crucial to the achievement of the Court’s goals, and are those within which justice must be seen to be done. In this light, this article conducts an analysis of the Office’s rhetoric and its ability to persuade affected communities that the Court is politically independent. The article outlines how the Office’s public communications express a key message of legalism; a belief in technical rule-compliance and in law’s superiority to politics. Using a classic Aristotelian framework, I argue that legalism lacks persuasiveness; it makes a weak appeal to the Prosecutor’s reputation, has a limited appeal in eliciting emotional support, and, is not a sufficiently logical explanation of the Court’s independence. In summary, legalism is a weak tactic of legitimation and a well-worn progress narrative. The article’s analysis has implications for other international institutions and the rhetoric they adopt to legitimate their independence. More specifically, the article concludes with recommendations that can help the Office reflect on its rhetoric and thus, develop a meaningful dialogue to those communities that are the Court’s raison d'être.

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