I disapprove of what you say, but I will defend to the death your right to say it.
-Evelyn Beatrice Hall, under the pseudonym S. G. Tallentyre (widely misattributed to Voltaire)
One of the prerogatives of being the owner of a self-funded eponymous blog is that I get to decide what I want on it. However, as the saying goes, “With great power comes great responsibility.”1 When it comes to the hundreds of comments to my posts, I believe I have only exercised my power of non-publication twice in the dozen years I have been hosting this blog. In both cases, I did so because I felt an attack on another commenter crossed a line from fair comment to nastiness. The most recent such withheld comment came in April of this year, and, ironically, it was directed at Professor Kevin Jon Heller. Even then, I reached out to the author and invited him to rewrite the comment but I never heard back. That said, I have never rejected a comment directed at me, no matter how needlessly ad hominem or vitriolic. Although I have, on a handful of occasions, exercised my editorial droits to remove some expletives.
What I do reserve unto myself, though, is the option to respond, which I now take the opportunity to do in response to Professor Heller’s comment to my recent post, ICC PROSECUTOR SUSPENSION: Process, Perception, and the Cost of Prolonged Uncertainty.2
As I was careful to note when I first posted, the count reflected what was being reported at the time. Perhaps a correction was warranted, but the more significant issue is not the final tally; it is the decision to forward the matter to the ASP. Within that context, I have consistently maintained that the ICC would be better served by Prosecutor Khan resigning. I am hardly alone in that view, as evidenced, among other sources, by the very comments alongside Professor Heller’s, including by a distinguished retired UN investigator of allegations of sexual exploitation by UN employees, a respected KC who was the first President of the International Criminal Court Bar Association, and an esteemed former Judge at the ICTY.
What is beyond dispute is that a sufficient number of States found no basis for exoneration. To the contrary, they concluded that sufficient concerns existed regarding ethical conduct to warrant referral of the matter for collective consideration by the Assembly. Whatever one’s ultimate position on the merits, that outcome reflects a determination that the issues raised are serious and deserving of serious scrutiny.
For all of his criticisms of my posts on L’Affaire Khan, however, Professor Heller’s position now appears to have shifted from asserting complete exoneration of the Prosecutor to debating the margin by which the exoneration claim was defeated. Be that as it may, my views have been shaped less by the allegations themselves than by the manner in which the matter has been litigated in the public sphere. Throughout this process, there has been a troubling amount of selective presentation, strategic messaging, efforts to shape the narrative in advance of the facts, and attempts to influence States. That, in my view, is where the real concern lies.
Viewed objectively, the intensity and persistence with which this defense has been advanced invite questions that would not otherwise arise. I do not prejudge the outcome, nor do I claim certainty as to the underlying facts. What I do question are the methods employed. They strike me as neither prudent nor consistent with the standards one would hope to see in matters of this nature.
I readily acknowledge that I may be mistaken. Yet after decades as a defense lawyer, my instincts are informed not merely by allegations but by the conduct of those responding to them. And, for what it is worth, had a different approach been taken – one marked by restraint rather than public pressure campaigns, selective disclosures, attempts to shape perceptions through media engagement, and repeated suggestions of institutional consequences should the Assembly decline to embrace a preferred outcome – I likely would have kept my powder dry, observed from the sidelines, and allowed the process to unfold wherever the evidence ultimately led. Instead, it has been the conduct of the defense campaign itself that has informed my skepticism and persuaded me that silence was not the appropriate course.
And, as I always remind my readers, fans and critics alike:
About Author
- The modern attribution of this saying is to Stan Lee, in the first appearance of Spider-Man in 1962. [↩]
- Professor Heller’s comment can be viewed in the sidebar to this post, or in the comment section at the end of the post to which it was appended. [↩]
