The dark side of social media is that, within seconds, anything can be blown out of proportion and taken out of context. And it’s very difficult not to get swept up in it all. – Nicola Formichetti
Ditto with press releases. In the age of soundbites, short attention spans, and instant messaging, errors in content are made with such frequency and such magnitude that unless one is well informed, scrumptiously analytical, and persistently skeptical, they go unnoticed. Nuance – the quality of something that can be hard to perceive yet vital for full appreciation – is often ignored or sacrificed when sloppily, lazily, or indifferently narrating complex matters in broad of categorical terms with little or no regard to context and/or all the facts.
In a recent conversation on writing with friend who is a journalist, writer, and public relations consultant, I was going on about George Orwell’s Politics and the English Language, extolling the virtues of the active voice, when he retorted:
Yeah, you’re right, but you lawyers sure love using the passive voice full of equivocations and escape-hatches.
I agreed:
You see, that’s what I call leaving yourself some ‘wiggle room’ since virtually nothing in law is black and white, and when it comes to the facts, one can rarely speak with absolute certainty. So better to play it safe by qualifying an answer.
[Not incidentally, as to this very post my SEO Plugin tells me: “Passive voice: 24.1% of the sentences contain passive voice, which is more than the recommended maximum of 10%. Try to use their active counterparts.”]
Context and nuance matters. Indeed, it is when not accounting for all facts and circumstances in context that nuance is lost, rendering less than accurate, fair, or reliable narratives and conclusions. It often is a simple matter of lack of due diligence, not of bad intentions – unless there are ulterior motives to take facts (and the interpretation of law) out of context to reach a pre-determined conclusion that, at the surface and to the unwary reader/listener, is persuasively compelling.
This brings me to the 22 February 2023 Report of the Legal Review Panel on the Amnesty International Press Release Concerning Ukrainian Fighting Tactics of 4 August 2022, which, curiously strange, was put on Amnesty International’s (AI) website on 28 April 2023, the same day that it featured in a New York Times article. Tempting to think that AI was attempting to quietly release the Report with much distance in time so it would go unnoticed. Query whether the Report would have been released when initially published if the Legal Review Panel’s conclusions painted a rosier picture?
Before I get to the Report, a few words on AI’s Press Release of 4 August 2023 (PR), which, full disclosure, I have cited in an earlier post, thinking, quite naturally, that since it was from AI it must be relatively solid.
I presumed because it was AI, the PR would not have been issued before it had thoroughly and diligently chased all leads down the rabbit hole (a presumption I would have been disinclined to make were the PR from Human Rights Watch), so that when it represented that there was a “pattern” of endangering Ukrainian civilians with its fighting tactics, it must be so.
My presumption was also based in part on my perception that considering what the Ukrainian forces are having to respond to, considering the overwhelming support for the Ukraine military both internally and externally, considering the suffering of the Ukrainian civilians who in the places mentioned in the PR are under constant attack by Russian forces, and considering the seriousness of the allegations and conclusions in the PR, which, in no small measure, assert in categorical terms that as a matter of law Ukrainian armed forces are effectively committing crimes, AI would have considered all necessary and reasonable facts and circumstances in context, and would have been exceptionally prudent and sensitive. It goes to show you why it is dangerous to presume, even when there is reason to assume good intentions.
Neither a soundbite nor an exegesis on some of the nuances of international humanitarian law (IHL), the PR is short and easily digestible, running just over four pages. The narrative is damming, accusing Ukrainian forces operating in certain areas of throwing caution for the civilians trapped in the middle to the wind – something that a few quoted civilians echo. AI concludes that the Ukrainian forces deliberately or recklessly are putting civilians in harm’s way without proper warnings, without assisting in evacuations for those who wish to leave, and without searching for other places from which they could wage their counter-offensives. It ends with the impression that when confronted with their findings and conclusions, the Ukrainian authorities declined to respond.
Expectedly, there was a huge outcry by the Ukrainians when the PR was released. Social media being what it is, the news of Ukrainian forces using tactics that are contrary to IHL travelled wide and fast. Russian atrocities did not feature in the PR, but in fairness, this was not about Russian forces, on which AI has not shied away from reporting. Nonetheless, this perceived one-sided PR caused such a stir that AI, again to its credit, established a panel of independent legal experts (the Panel) to review AI’s investigative methods, the information gathered, and the exchanges among the AI staff who investigated and drafted the Report; to conduct interviews of AI staff; and to answer two overarching questions:
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- Did the legal analysis in the PR fall within “an acceptable range of interpretation” of IHL?
- Was the evidence underlying the PR “sufficient to support the legal conclusions” that AI reached?
The Panel – Emanuela-Chiara Gillard (University of Oxford), Kevin Jon Heller (University of Copenhagen), Eric Talbot Jensen (Brigham Young University), Marko Milanovic (University of Reading), and Marco Sassòli (University of Geneva) – took it upon itself to add two issues believed germane to its mandate, though it only partially addressed them “to the extent that the Panel found that it could not effectively review the legal conclusions in the PT without doing so:”
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- Whether the PR communicated AI’s legal conclusions effectively; and
- Whether AI had given the Government of Ukraine sufficient time to respond the AI’s allegations.
Here is where I would normally start analyzing the Panel’s thirteen findings and adding my two cents. But I won’t. Instead, I will just briefly tell you why I think this Report is essential reading for those of us involved in international criminal law.
Not to gild the lily, this exquisite Report should be mandatory reading for many of the judges and their ghost-writing staff. It informs and instructs how to carefully look beyond the surface of impressively presented facts to see whether all available facts based on all available means to gather the facts have been fairly assessed, the importance of nuance and context when interpreting applicable legal instruments, and the fairness with which conclusions should be reached.
As I read the Report, my mind wondered about the many judgments over the years where facts are cavalierly implied or grossly ignored, context is disregarded, and nuance is utterly absent. If the PR reads like a summary of a trial judgment with its categorical findings and sloppy interpretation of the law, the Report reads like a meticulously crafted appeal judgment – not the kind where the judges aloofly accept the trial chamber’s findings of fact even when there is clear evidence that the trial judges ignored large swaths of it, which, if considered (as was done by the ICC Appeals Chamber in Bemba) could lead to a different outcome.
It is not that the Panel analyzes the available data provided by AI as the basis for their findings of fact and conclusions of law from an unquestionably superior vantage point. Far from it. AI had staff in situ and presumably could have more diligently investigated all necessary the facts, been more exacting in interpreting the applicable law, and above all been more circumspect and judicious before making categorical allegations as a mater of law. What impresses is the Panel’s fairness (almost annoyingly at times) in its clear analytic rigor, the elucidation of nuances of the applicable law, and its sympathetic yet utterly self-confident rationality in admonishing, if your will, AI for a job not-so-well done.
Perhaps AI got its conclusions right in its PR. Perhaps. But that is neither obvious nor certain when fully considering what AI failed to verify, how it failed to contextualize the events under the circumstances, how it failed to interpret the law as it is as opposed to what it progressively should be, how it failed to give the Ukrainian forces adequate time and opportunity to respond, and how it failed to qualify its findings and resultingly its conclusions.
As for the Ukrainian government and its forces, rather than vex over the PR and imply ill-intent by AI, the PR should serve as a cautionary note. As the Panel rightly notes “IHL applies equally to all sides to an international conflict, including the party that is clearly the victim of aggression.” The facts reasonably substantiate that Ukrainian forces are placed “in civilian objects in the proximity of civilians who remained in these areas, including hospitals and abandon schools,” and while the AI investigation is inconclusive as to whether Ukrainian forces failed to take precautions to the maximum extent feasible as required by Article 58 of the Additional Protocol I to the Geneva Conventions of 1949, the RP should serve as a clarion call for even greater vigilance in keeping civilians out of harm’s way whenever feasible.
Do take the time to read both the PR and Report. Well worth the effort.
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