The ICC Pre-Trial Chamber’s Reading of “or” in the Myanmar Jurisdiction Ruling: On the Relevance of Linguistics to Interpretation

Linguistics continues to be a blind spot for international lawyers. Despite the self-perception that lawyers work predominantly with language, an in-depth inquiry into the actual science dealing with the phenomenon of language remains, to a large extent, a desideratum. Linguistics can, however, be very helpful in understanding the intended meaning of a word or phrase, as we will try to argue in this post. A good example of its usefulness and significance is provided in the recent decision of the ICC Pre-Trial Chamber on the Prosecutor’s request for a ruling on whether the Court may exercise jurisdiction over the alleged deportation of members of the Rohingya people from Myanmar to Bangladesh. In paras 52 ff., the Chamber had to interpret Article 7(1)(d) of the Rome Statute to establish whether the Article embodies either a single or two separate crimes, in light of the use of the word “or”. As will be be shown, the resulting interpretation of the word “or” demonstrates the usefulness of linguistic knowledge from which international law could draw in the future.

We hope that we are not seen as using a case featuring harrowing events as a mere façade for legal-intellectual exchanges. We suggest that a narrow technical approach is justified, particularly, in such important cases where so much depends on interpretation (e.g., the exact contours of jurisdiction of an international court).

Linguistics, semantics, pragmatics

International lawyers’ relationship with linguistics has been somewhat selective. In recent writing, some have used elements of corpus linguistics or discourse analysis to gain insights into international law. However, other modern aspects of studying meaning as a phenomenon in language seem to continuously escape international lawyers’ attention. For example, there is a certain tendency to refer to Wittgenstein’s Philosophical Investigations (1953) and his argument that words are defined by how they are used without putting his work in context (see e.g. recently Klabbers, International Law, Cambridge University Press 2017, p. 56). The progress that linguistics has made in the decades following the 1950s, in particular with regard to the semantics-pragmatics divide, is left aside as a consequence.

The distinction between semantics and pragmatics (including cognitive pragmatics) could, for example, help in reflecting on interpretation. As is so often the case in an inter-disciplinary approach, our aim is to refine the existing system rather than to change or replace it. Linguistics would not be suitable for that purpose as it is a fundamentally descriptive discipline. Put simply, for the present purposes, the core difference in perspective between semantics and pragmatics is that the former deals with encoded meaning, whereas the latter focuses on language use and meaning, i.e. elements that need to be inferred because they are not expressed in explicit lexical items. Linguists speak of a “code” model of communication and an “inferential” model of communication. Both models are in operation in the process of communication. Take the example “Can you pass me the salt?”. From the explicit elements of the sentence, some things can be decoded (e.g. the conceptual content of “salt”) while others remain to be inferred. It is, thus, impossible to decode whether the sentence is a request for salt or a question about the addressee’s capability to pass the salt. Only the context of the utterance will allow the addressee to infer whether it is a request or a question.

The same uncertainty can arise when language is used to express the law. Lawyers sometimes claim that language in law operates differently from other forms of human communication. However, to date, no convincing argument has been developed to substantiate this claim or its implications. In law as elsewhere, addressees must both decode and infer to arrive at an interpretation of the language of an utterance.

The Chamber’s views

In this context, “or” has been found in linguistics to be more complex than the Pre-Trial Chamber would let it appear. Article 7(1)(d) of the Statute includes “[d]eportation or forcible transfer of population” as one of the crimes against humanity that are within the jurisdiction of the Court. The Chamber had to interpret the provision to decide whether it encompassed a single crime or two separate crimes. It decided that the provision embodied two separate crimes based on a number of arguments.

Most prominently, the Chamber found that the ordinary meaning of “or” already provided a very strong indication of the provision containing two separate crimes [54]. The Chamber then added a number of additional supporting reasons: First, the Elements of Crimes indicate that there are two crimes with different destinations (“deportation” means to another State, “forcible transfer” means to another location within the same State) [55]. Moreover, the crimes of deportation and forcible transfer also exist separately in international law apart from the Statute [57]. Furthermore, the object and purpose of the Statute supports the chosen interpretation, as the two separate crimes protect different interests [58]. Finally, this interpretation is in line with the previous jurisprudence of the Court [59].

We do not aim to argue against the result reached by the Chamber or the other arguments it used to bolster its core finding. However, as we will see, the “ordinary meaning” of “or” is more complicated than the Chamber interpreted it to be. The interpretation of the wording thus provides weaker conclusions than those drawn by the Chamber. Arguably, this fact makes it necessary to rely more strongly on the previously mentioned other arguments than on the “ordinary meaning”. In instances such as the present one, linguistics can help prevent interpreters in international law from misrepresenting the possible meanings of words and can help interpreters be aware of their own inferences, which may require justification.

Let us look in detail at the Chamber’s reasoning on “or” (footnotes omitted):

“This conclusion arises, in the first place, out of ‘the ordinary meaning to be given to the terms of’ article 7(1)(d) of the Statute. As mentioned above, this provision reads: ‘[d]eportation or forcible transfer of population’. According to the Oxford Dictionary, ‘or’ is ‘[u]sed to coordinate two (or more) sentence elements between which there is an alternative’ and ‘[t]hings so coordinated may differ in nature […]’. This means that the reference to ‘or’ in article 7(1)(d) of the Statute signifies that this provision includes two alternatives, namely two distinct crimes.”

Linguistics and the meaning of “or”

Within linguistics, “or” has typically been examined from a semantic and pragmatic perspective. In a nutshell, in English “or” is a kind of coordination in which two phrases or sentences conjoined by “or” form a single processing unit. This unit is true if one or both of the phrases or sentences conjoined by “or” are true. In other words, “or” encodes an inclusive reading. If we express this reading with the help of the logical operator “∨”, “P ∨ Q” is logically equivalent to “P or Q or both”. This minimal encoded meaning can be used in communication to convey or have the reader infer a pragmatically modified or, in other words, enriched or more informative meaning. “P or Q but not both” is an exclusive reading of the same expression. The exclusive reading is compatible with its semantics in the sense that at least one of the conjoined phrases or sentences is true. The minimal semantic content of “or” is, however, insufficient to arrive at an exclusive reading (see in more detail on Relevance Theory as the relevant pragmatic theory here).

As a consequence, the Chamber cannot claim that “or” clarifies in and of itself that there are two separate crimes. The cited dictionary also does not support such an exclusive reading (leaving aside other problems arising from giving too much authority to dictionaries). If we take the phrase “ordinary meaning” to mean the meaning that can be taken from the text without context, i.e. by decoding and not by drawing inferences, “or” does not mean what the Chamber says it means. The decoded meaning of “or” would be “deportation or forcible transfer of population or both”. This makes a reading possible under which the two are only one crime (“deportation and forcible transfer of population”). Perhaps under this reading the Statute simply aims to clarify what crime (not crimes) we are supposed to imagine under article 7(1)(d) by expressing it in two exemplary ways (“something along the lines of deportation, forcible transfer of population”). That is of course the opposite of how the Chamber interpreted “or”. The Chamber’s exclusive reading of “or”, by contrast, only emerges from inferences drawn from the other arguments brought forward by the Chamber. An interpreter thus has to pragmatically enrich “or” for it to mean “deportation or forcible transfer of population, but not both”. This example thus shows that linguistics has some important, doctrinally relevant points to raise. In this case, the Chamber only partly relies on the ordinary meaning of “or” and provides other arguments to validate its interpretation. Therefore, its conclusion can still be defended. Nonetheless, linguistics shows that the inferences drawn from the reading of “or” are essential and that its ordinary meaning is a much less “final” answer to the relevant question than the Chamber’s reasoning suggests.

On a final note, we have presently applied linguistics to the interpretation of the word “or” in this instance. A deepened understanding of linguistics may have benefits reaching beyond the understanding of interpretation as a phenomenon in international law. Linguistics could play a fruitful role when those creating legislation (see an example of linguistics applied to the creation of legislation, albeit at the national level, here) or drafting treaties face the challenge of having to anticipate various readings of a norm.