Last year, during the hearing of a case against Colombia at the Inter-American Court of Human Rights, the President of the Court expressed to the woman at the center of the controversy (a prestigious journalist who was abducted, beaten, and raped by numerous men when she was conducting—because of—sensitive criminal investigations involving paramilitaries in prison), that she, the Court’s President, was sorry for what happened to her. In a heartfelt exchange, President Odio-Benito made public her admiration and gratitude to journalist Jineth Bedoya for her courage in fighting and becoming a symbol of the fight of women who are victims of sexual violence in armed conflicts (Resolution, fn 8). Colombia’s defence team then challenged the President and other judges and requested to suspend the hearing. After the President denied the request, and in a reaction widely criticized, Colombia’s team withdrew from the hearing, alleging that the President’s comments offered neither objectivity nor impartiality to the state. What to make of this clash between human empathy towards a survivor of sexual abuse and the necessarily antiseptic rules of judicial proceedings?
In The Sentimental Life of International Law, Gerry Simpson builds on the central concern of his provocative 2015 article that a legitimate discontent with the excessive melodrama frequently found in analyses of international humanitarian law and human rights abuses (with the sentimentality’s vices of simplicity, sentimental excess, solipsism, and de-politicization) could lead into the recurrent coldness of the legal categories we rely on to make sense of those crimes. That dispassion is similarly present in the absurdity of solemn conclusions like the incompatibility between IHL principles and the use of nuclear weapons (who cares when the world is being annihilated?) or the incongruence seen in war crimes trials between the atrocities adjudicated and the trial’s ritualistic forms. One answer to this disproportion, as far as legal ceremoniousness is concerned, Simpson argues, could be laughter and irony, which in this context ought to be appreciated “as forms of moral vigilance” (p. 71).
It is almost impossible not to share Simpson’s bathetic reaction to the examples he mentions. However, I cannot imagine how either ironic or blasphemous laughter (understood here as literary devices, not cynicism) could serve as a reflexive response to Latin America’s and other transitional societies’ approaches to their historical abuses. This is not because those societies are not sophisticated enough to handle irony. In a sense, I agree that “the absence of irony is a mark of an immature politics or a child-like desire for certainty” (p. 73). However, giving too much public prominence to comedy and bathos is an unnecessary risk given the stakes at play. We know and recognize the vices of sentimentality and can control for them, whereas irony and laughter are politically untested and therefore risky in volatile or transitional contexts. I believe that bathos, comedy, and irony could perhaps be used as a sign on the road to remind us—particularly lawyers—that there is more to human dignity than the rights codified in humanitarian treaties and more to justice than is produced in courts. But only that.
This more secure handling of sentimentality is illustrated when, in outlining a counter-history of international criminal law (chapter iv), Simpson speaks of ‘unprecedenting past trials’ and how some emotional sense of justice has often overridden procedural safeguards or adequate use of legal precedents in those precursor trials. It is interesting to me that this overriding has extended into more structural features of human rights courts. Critiques of over-stretching the teleological method in treaty interpretation to justify an unexpected understanding of old written provisions are well known (e.g., by Neuman and Lixinski). Moreover, these types of cases exemplify the intersection of sentimentality and its gap-filling function when there are no (or not ‘convenient’) precedents available.
So, if one had to choose, I consider that all in all, it is preferable to settle on the side of ‘sentimentality.’ In fact, it is with some hesitancy that I defend some sentimentality in human rights law: not because I neglect its vices but because the alternative—dryness, excessive formality—would be worse in cases involving actual human beings in need of relief. In the realm of human rights, it seems that some sentimentality covered in legal clothing has done a lot of good for Latin America, much more than the drafters of our regional human rights convention anticipated. This may be a less poetic form of sentimentality but a relevant one nonetheless.
To come back to the painful episode in the Inter-American Court, despite the apparent sentimentality of the President’s manifesting her deep feelings in the hearing, I see how examples like this could fit one of Simpson’s goals in the book, namely “to offer another way of doing international law in the redemptive, practical vein that (…) would involve offering some sort of answer to the perennial questions about what ought to be done” (p. 89). With her thoughtful words, President Odio-Benito, who also dealt with related crimes when she served at the ICTY and the ICC, showed genuine respect to the victim, mainly by not reducing her to that category. Like the Rebecca West story that Simpson cites about the child growing cyclamens in Nuremberg with the Trials as the backdrop, the Court’s President treated the journalist as “neither passive nor just a victim (in the way we demand victims be just victims in criminal trials)” (p. 206). One of the remarkable aspects of that hearing at the Inter-American Court is that the case revolved around a journalist recognized for exposing wrongdoings who was wronged herself. That duality (being a victim and an influential social actor at the same time) is acknowledged and honoured by President Odio-Benito when she not only lamented the suffering journalist Bedoya went through but, more significantly, exalted her agency and the worth of her work. In that way, and for a short moment, a formal hearing about unspeakable torment overcame both the dryness of rituals and the melodrama of tears to become something more authentic and unpretentious. In that instant, international law intersected with imaginative thought and turned into the “law of possibility” (p. 189). I do not dare to draw definitive lessons from this example, but this judge’s approach could help guide us in redeeming international law without falling into one of sentimentality’s vices.
Furthermore, that goal-hope of saving international law from its current self reveals how Simpson is mostly a (qualified) sentimental too. Despite his angst about dispassion, technocracy, and fraudulent sentimentalism in the international legal space, he embraces some form of sentiment without sentimentality. This is best expressed in his view of gardening (chapter vii). The garden represents an alternative setting not only for working at a distance from the ruling canons but also for imagining a more creative and artisanal form of international law.
In that sense, I received this book as his personal garden, the space where he revisits how we understand ourselves (international lawyers, scholars, skeptics of utopias) through the lens of literature and the lives of people situated outside technical legal discussions. More importantly, Gerry Simpson invites us to think it is worth engaging in alternative modes of tackling pressing global issues. That for all the epic but deceitful accounts advanced by the governing orthodoxies, there is still some space for sentimental, blasphemous ways of reflecting on our identity and building a new vision where sentiment without illusion helps redeem international law.
