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Inescapable Dyads: Why the International Criminal Court Cannot Win

Published online by Cambridge University Press:  24 April 2015


The International Criminal Court (ICC) is surrounded by controversies and criticisms. This article highlights some patterns in the arguments, showing that many plausible criticisms reflect inescapable dyads. For any position that Court could take, one or more powerful criticisms can inevitably be advanced. The tension can be obscured because shared terms are often recruited for opposite meanings. Awareness of these patterns can (i) provide a framework to better situate arguments, (ii) reveal the deeper complexity of the problems, and (iii) help us to evaluate and improve upon the arguments. Awareness of dyadic structures can lead to a debate that is more generous, as we acknowledge the difficulty and uncertainty of choosing among flawed options, yet also more rigorous, as we attempt to articulate and improve upon our frameworks of evaluation. The goal of this article is to encourage a better conversation that can generate better insights.

HAGUE INTERNATIONAL TRIBUNALS: International Criminal Court and Tribunals
Copyright © Foundation of the Leiden Journal of International Law 2015 

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1 Akin to ‘damned if you do, damned if you don’t’.

2 For discussion of distortions in reasoning, see Robinson, D., ‘The Identity Crisis of International Criminal Law’, (2008) 21 LJIL 925CrossRefGoogle Scholar. For discussion of snowball effects in received wisdom, see Robinson, D., ‘The Mysterious Mysteriousness of Complementarity’, (2010) 21 Criminal Law Forum 67CrossRefGoogle Scholar; Robinson, D., ‘The Controversy over Territorial State Referrals and Reflections on ICL Discourse’, (2011) 9 JICL 355Google Scholar.

3 See, e.g., J. Marshall, Goldilocks and the Three Bears (1988).

4 C. Booker, The Seven Basic Plots: Why We Tell Stories (2005), 231–2.

5 For example, in astrobiology, one expects to find life on planets that are neither ‘too hot’ nor ‘too cold’ but rather ‘just right’.

6 ‘[I]t is a mean because the vices respectively fall short of or exceed what is right . . . while excellence both finds and chooses that which is intermediate.’ Aristotle, Nicomachean Ethics, Β VI 1107a 1–7.

7 See examples in the following sections.

8 J. Heller, Catch-22 (1961).

9 M. Koskenniemi, From Apology to Utopia: The Structure of Legal Argument (2005), at 16–24, 63–7. Koskenniemi advances these ideas for a different purpose, namely a critical approach to international law, showing the dynamics, dilemmas, and indeterminacy of professional legal argument. He does so in order to show that the range of actual legal argumentation is constrained by structural biases; his aim is to open a door to an emancipatory agenda, re-imagining what is posited as natural, highlighting the choices made and suggesting new choices. (See ibid., at 533–61 and 589–617). While I support that broader normative agenda, my purpose here is narrower and pertains only to the plane of discourse: to point out these patterns in the international criminal law conversation in order to encourage a deeper, more thoughtful conversation.

10 Ibid., at 16–20, 58, and 65–7.

11 Ibid., at 58.

12 Ibid., at 21, 35, 65, 67, and 167.

13 Ibid., at 65.

14 Ibid., at 16. See also ibid., at 67, 69, and 70.

15 See supra, note 9.

16 As an example of the personalized version, ‘Mr. Ocampo's desire to be seen threatening leaders with trials runs the risk of keeping those leaders in power longer’: D. Saunders, ‘Ocampo's crusades tainted the idea of international justice’, Globe & Mail, 10 September 2012.

17 An example of the institutionalized version is the assertion that the ICTY is complicating peace for ineffective ‘exercises in symbolism’ that do not help people in the region but aim ‘to strengthen the prestige of the court in the Hague’: Rabkin, J., ‘The UN Criminal Tribunals for Yugoslavia and Rwanda: International Justice or Show of Justice?’ in Driscoll, W., Zompetti, J., and Zompetti, S. (eds), The International Criminal Court: Global Politics and the Quest for Justice (2004), 76–9Google Scholar.

18 As Koskenniemi, supra note 9, observes, any decision can be labelled as ‘too political’ because it is ‘too dependent on state policy’ (at 23) or as ‘too political’ because it does not reflect state policy (at 24).

19 ICC Statute, Art. 13, and for further elaboration see Arts. 14, 15, and 53.

20 An arguable exception is the referral from Comoros concerning events on ships in the Gaza flotilla. However, even in that situation the key events were on a ship registered to Comoros (and thus the referral is by the state of territory): <> (accessed 29 January 2015). The significance of the difference between ‘self-referrals’ and other referrals is often overstated, as I have argued elsewhere.

21 See, e.g., Schabas, W., ‘Complementarity in Practice: Some Uncomplimentary Thoughts’, (2009) 19 Criminal Law Forum 5, at 16–22CrossRefGoogle Scholar; Arsanjani, M. and Reisman, M., ‘Law-in-Action of the International Criminal Court’, (2005) 99 AJIL 385CrossRefGoogle Scholar, at 392–5; Müller, A. and Stegmiller, I., ‘Self-Referrals on Trial: From Panacea to Patient’, (2010) 8 JICJ 1267Google Scholar, at 1269; Human Rights Watch, ‘Courting History: The Landmark International Criminal Court's First Years’ (2008), 41–2.

22 R. Dicker, ‘A Flawed Court in Need of Credibility’, New York Times, 21 May 2012 (‘toxic risk of appearing to be used to advance the political objectives of powerful states’; ‘risk of political taint’; political selectivity of Council members ‘undercuts the court's credibility’). Mark Kersten quotes Benjamin Schiff for the proposition that UNSC referrals are a ‘poisoned chalice’: Kersten, M., ‘A Fatal Attraction? Libya, the UN Security Council and the Relationship between R2P and the International Criminal Court’, in Handmaker, J. and Arts, K. (eds.), International Law and the Politics of Justice (forthcoming)Google Scholar. And see Schabas, W., ‘The Banality of International Justice’, (2013) 11 JICJ 545Google Scholar, at 549 (‘shackled to the priorities of the Security Council’).

23 Anderson, K., ‘The Rise of International Criminal Law: Intended and Unintended Consequences’, (2009) 20 EJIL 331CrossRefGoogle Scholar (rightly noting dangers and risks of ICC intervention based on a Security Council referral when there is no credible threat of action to enforce); M. Jamshidi, ‘The Enforcement Gap: How the international Criminal Court failed in Darfur’, Al Jazeera, 25 Mar 2013, available at <>. (accessed 29 January 2015).

24 ‘Kenya Asks UN to Halt ICC Charges against Kenyatta’, BBC News Africa, 9 May 2013 (citing utopia arguments: destabilizing, may undermine peace, foreign interference in domestic affairs, need respect Kenya's sovereignty, voice of Kenyans); M. Kamau, ‘Why I Insist that ICC Cases against Kenya Leadership should be Dropped’, Daily Nation, 20 May 2013 (invoking several themes of utopia critique: the need to respect ‘the will of 40 million Kenyans’, ‘foreign intimidation and manipulation’, ‘main purposes of the ICC seem to be to advance the career interests of a handful of jurists and academics’). See also utopia critiques in Austin, C. and Kolenc, A., ‘Who's Afraid of the Big Bad Wolf? The International Criminal Court as a Weapon of Asymmetric Warfare’, (2006) 39 Vanderbilt Journal of Transnational Law 291Google Scholar.

25 Note again the two different senses of legitimacy, one requiring consent and conformity to state wishes and one requiring disregard for state wishes.

26 See, e.g., Human Rights Watch, supra note 21, at 43–4; Schabas, W., ‘Prosecutorial Discretion v. Judicial Activism at the International Criminal Court’, (2008) 6 JICJ 731Google Scholar, at 740.

27 This sentiment was often expressed about the possibility of the ICC not getting a UNSC referral; see, e.g., Heyder, C., ‘The U.N. Security Council's Referral of the Crimes in Darfur to the International Criminal Court in Light of U.S. Opposition to the Court: Implications for the International Criminal Court's Functions and Status’, (2006) 24 Berkeley Journal of International Law 650, at 653Google Scholar.

28 Alternatively, you might be thinking that I have overlooked an option: State party referrals from states other than the territorial state. This is the only option that has not yet been used (see, however, supra, note 20) and hence the only option that has not yet received significant condemnation. Indeed referrals from third states are often thought to be the ‘classic’ or ‘proper’ type of referrals, due to a popular belief that territorial state referrals were never contemplated by the statute drafters. But referrals from third states are also open to perfectly salient criticisms. The apologia critique is that the referring state had political motivations for making the referral and thus the ICC is being used a tool for those political aims. The utopia critique is that an ICC intervention without local support is unwelcome, unwise, and lacking domestic legitimacy.

29 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, [1996] ICJ Rep. 226 at 234 and 238.

30 As do states making an Art. 12(3) declaration. With Security Council referrals, state consent is more indirect: the state agreed to carry out Security Council orders under Chapter VII of the UN Charter for the maintenance of peace and security, which includes orders to co-operate with international justice bodies.

31 This article will follow the practice of focusing on the policies and preferences of states, but there are also other possible sites of power (e.g. the UN) and hence different possible foci of apologia and utopia critiques.

32 See, e.g., some of the reactions to arrest warrants in the Uganda situation or the Darfur situation, particularly against Al Bashir, discussed below.

33 You may in response be tempted to think that the solution is to clarify the expectations; I will discuss that below, under ‘Implications’.

34 Some arguments may however have a more limited or provisional plausibility if one is aware of the dyadic tensions, as they are then plausible from one perspective. This leads to the desirability of a framework for evaluation.

35 The ICC, with a 2014 budget of approximately EUR 120 million, is dealing with 7 situations. ICTY and ICTR annual budgets varied but were typically in the vicinity of USD 120 million for every situation.

36 An exception being the ICTY investigation in Kosovo in 1999, which was after the Rome Conference.

37 Consider, e.g., the decision of an ICC Trial Chamber to conditionally excuse William Samoei Ruto from continuous presence at his trial, and the Appeals Chamber decision reversing it. The trial decision has been subjected to apologia critiques that it allows privileges for the powerful. The appeal decision has been subjected to utopia critiques that it fails to reasonably accommodate other shared values and state interests, such as governance.

38 See, e.g., Kearney, M. and Reynolds, J., ‘Palestine, and the Politics of International Criminal Justice’, in Schabas, al. (eds.), The Ashgate Research Companion to International Criminal Law: Critical Perspectives (2012), at 407Google Scholar: ‘the pandering to the Security Council is clear’ (428); ‘politics of compromise trump the rights of Palestinians’ (408); Prosecutor ‘demonstrated an explicit political bias in favour of the status quo and the desires of the European and North American powers – and thus against the Palestinians’ (426). See also <> (accessed 29 January 2015): ‘This dangerous decision opens the ICC to accusations of political bias and is inconsistent with the independence of the ICC.’ And see Dugard, J., ‘Palestine and the International Criminal Court: Institutional Failure or Bias’, (2013) 11 JICJ 563Google Scholar.

39 See, e.g., D. Davenport, ‘Happy Birthday, International Criminal Court’, Forbes, 1 July 2012, arguing that jurisdiction was so clearly lacking that even the consideration given was ‘precisely the kind of politicization and overreaching that was feared from an independent prosecutor’. Even more recently, Palestine received observer state status at the UN and submitted instruments of ratification, leading to a new preliminary examination. The US and Israeli reactions are perfect illustrations of utopia critiques. The Israeli Foreign Minister asserted that the Court's process was ‘entirely from political and anti-Israel considerations’, and that the ICC ‘represents no one. It is a political body''. US officials described the move as ‘counterproductive to the cause of peace’. ‘US and Israel criticise ICC war crimes probe’, AlJazeera, 17 January 2015; ‘Israel lobbies foreign powers to cut ICC funding’, Reuters, 18 January 2015.

40 See Schabas, supra note 22; Murphy, R., ‘Gravity Issues and the International Criminal Court’, (2006) 17 Criminal Law Forum 281CrossRefGoogle Scholar.

41 See Davenport supra note 39 (‘The new prosecutor should spend less time on highly visible and politicized cases and bring some cases of war crimes and crimes against humanity she can actually try and win’); Kaye, D., ‘Who's Afraid of the International Court?’ (2011) 90 Foreign Affairs 118Google Scholar, at 126 (‘having chosen to pursue the big fish and failed to catch many, now [the Prosecutor] does not have much to show for his efforts’).

42 Branch, A., ‘Uganda's Civil War and the Politics of ICC Intervention’, (2007) 21 Ethics and International Affairs 179CrossRefGoogle Scholar; Drexler, M., ‘Whither Justice? Uganda and Five Years of the International Criminal Court’, (2010) 5 Interdisciplinary Journal of Human Rights Law 97Google Scholar; Schabas, supra note 21 at 32–3; Human Rights Watch, Unfinished Business: Closing Gaps in the Selection of ICC Cases (2011), at 16.

43 See, e.g., J. Flint and A. de Waal, ‘To Put Justice Before Peace Spells Disaster for Sudan’, The Guardian, 6 March 2009; Saunders, supra note 16; O. McDoom, ‘Justice Clashes with Peace on Darfur Bashir Warrant’, Reuters 14 July 2008; Davenport supra note 39; T. Murithi, ‘The African Union and the International Criminal Court: An Embattled Relationship?’ Institute For Justice and Reconciliation Policy Brief, 8 March 2013 at 3–4; Mackie, A., ‘Perceptions, Politics, and Peace: The Limits of Globalization in Legitimizing the International Criminal Court’, (2012) 30 Macalester International 132, at 135Google Scholar.

44 For examples of the latter, see the ‘peace versus justice’ debate, touched on below in section 3.5

45 See, e.g., Murithi, supra note 43; J. Wouters and K. Chan, ‘Policies, Not Politics: The Pursuit of Justice in Prosecutorial Strategy at the International Criminal Court’, Working Paper at Leuven Centre for Global Governance; Jalloh, C. C., ‘Regionalizing International Criminal Law?’, (2009) 9 International Criminal Law Review 445CrossRefGoogle Scholar; Drexler, supra note 42; Eberechi, , ‘Rounding up the Usual Suspects: Exclusion, Selectivity, and Impunity in the Enforcement of International Criminal Justice and the African Union's Emerging Resistance’, (2011) 4 Afr. J. Legal Stud. 51CrossRefGoogle Scholar.

46 Many important caveats could be added here. First, there are of course multiple possible plausible sets of selection criteria to operationalize and supplement the rudimentary legal provisions in the Rome Statute. Different criteria could generate different yet plausible selections. Second, one might adopt selection principles that, for example, consider demonstration effects as one factor added to the scale in favour of prosecuting powerful persons. But two things will remain true. One, whatever criteria you adopt will be amenable to apologia and utopia critiques. Two, on any criteria you adopt, sometimes powerful persons will not meet those criteria, in which case you will be vulnerable to accusations that the real reason for your failure to select them was political timidity.

47 In this hypothetical example, a quite correct suspicion.

48 A tension discussed in Greenawalt, A. K. A., ‘Justice Without Politics’, (2007) 39 New York University Journal of International Law and Politics 583, at 647–50Google Scholar. The article suggests a hybrid between uniform standards versus uniform outcomes (prosecuting all groups for demonstration effects), which is likely commendable, but will of course (like any approach) be subject to critiques from both sides.

49 I will return in Section 5 to two additional senses of the label ‘political’, the first suggesting that one has twisted the law because of (apologist or utopian) machinations, and the second more modestly noting that any legal interpretation (even in good faith) will have apologist or utopian implications.

50 I am speaking of case selection among the numerous cases that satisfy the statutory criteria, where there is scope for prosecutorial policy to select cases.

51 The two poles would be reversed in the event of a failure; then hindsight bias would tend to suggest that the project was foreseeably doomed to fail and hence it was unwise to attempt it.

52 Report of the Prosecutor of the ICC, Mr Luis Moreno Ocampo, to the Assembly of States Parties, 8 September 2003, <> (accessed 29 January 2015).

53 Arsanjani and Reisman, supra note 21.

54 Ibid., at 398.

55 Ibid., at 403.

56 Clark, P., ‘Law, Politics and Pragmatism: The ICC and Case Selection the Democratic Republic of Congo and Uganda’, in Waddell, N. and Clark, P. (eds.), Courting Conflict? Justice, Peace and the ICC in Africa (2008), 37Google Scholar, at 40–1. The quoted argument appears in the context of an interesting broader argument that the Prosecutor has avoided politically difficult cases (which fits more under section 3.5. ‘too low’). The quoted criticism is however explicitly about the operational level – taking ‘the easiest cases’ because the dossiers were allegedly already ‘ready to go’.

57 L. Vinjamuri and J. Snyder, ‘ICC Sherriff Too Quick on the Draw’, May 2011, <> (accessed 29 January 2015); Branch, supra note 42 at 182–5 and 195; A. Traylor, ‘Uganda and the ICC: Difficulties in Bringing the Lord's Resistance Army Leadership before the ICC’, (2009) 6 Eyes on the ICC 23, at 34–7 (noting that the Court must not be ‘too insulated from political considerations’; Mackie, supra note 43; Flint and de Waal, supra note 43.

58 ‘[T]he silence of the ICC is deafening. This inaction favours a climate of impunity. An intervention by the ICC, for which victims have been waiting for too long, could . . . prevent the repetition of the most serious crimes.’ FIDH Press Release, ‘The Prosecutor of the International Criminal Court must open an investigation into the situation in the Central African Republic’, 12 January 2009, <>.

59 For example, in the United States it is today taken as granted that executive bodies will implement the decision of the US Supreme Court. This was not always so. President Andrew Jackson is often quoted responding to one unpopular 1832 decision, ‘John Marshall has made his decision – now let him enforce it!’. The quote may in fact be apocryphal; Marshall did however write that the Supreme Court ‘cannot coerce Georgia to conform to its mandate’.

60 ICC Statute, preamble para. 9 and Arts. 40 and 42.

61 ‘To walk and work he needs artificial limbs. The artificial limbs are the state authorities; without their help the Tribunal cannot operate.’ Address of Antonio Cassese, President of the ICTY to the UN General Assembly, 7 November 1995.

62 Consent may be provided through ratification of the Statute or Art. 12(3) declarations, or indirectly through membership in the UN and thus being subject to Security Council resolutions. I am not addressing the extent to which the international law concept of consent might ultimately be adjusted by a responsibility to protect.

63 Part IX, ICC Statute. States parties are compelled to comply under Part IX, as are states making a declaration under Art. 12(3) and states ordered to co-operate by the Security Council under its Chapter VII powers.

64 If not from the territorial state then at least from some entity with power over evidence, witnesses and suspects.

65 ICC OTP, Draft Policy Paper on Preliminary Examinations, 4 October 2010, para. 34.

66 Human Rights Watch, supra note 21, at 57 (also acknowledging that contact and state assistance is necessary).

67 See Human Rights Watch, supra note 21 at 57 and at 219–22.

68 Kaye, supra note 41, at 125.

69 Ibid., 127.

70 Wouters and Chan, supra note 45 at 12.

71 Murithi, supra note 43 at 6.

72 Nouwen, S. and Werner, W., ‘Doing Justice to the Political: The International Criminal Court in Uganda and Sudan’, (2011) 21 EJIL 941CrossRefGoogle Scholar, at 958.

73 See, e.g., ibid., at 951–2; Murphy, supra note 40 at 309; Branch, supra note 42 at 188 (in some missions in Uganda, the ICC relied on security from government forces, leading to questions about impartiality); Drexler, supra note 42, at 100 (same concern).

74 ‘I have the honor to extend my most sincere congratulations and those of my collaborators on your appointment as President of the National Assembly of Côte d’Ivoire . . . I want to reiterate my gratitude for your action and support for the work of my Office in Côte d’Ivoire, and I hope you will continue the same quality collaboration with my successor, Fatou Bensouda. . . . I hope we will have the opportunity . . . in the coming weeks to continue the fruitful cooperation between your Government and my office.’ Cited in K. Heller, ‘Moreno-Ocampo Once Again Undermines the OTP's Credibility’, 14 April 2012, available at <> (accessed 29 January 2015).

75 Wouters and Chan, supra note 45 at 15; Heller, ‘Moreno-Ocampo Once Again Undermines the OTP's Credibility’, supra note 75.

76 German Declaration of War with the United States, 11 December 1941, available at <> (accessed 29 January 2015).

77 Ainley, K., ‘The International Criminal Court on Trial’, (2011) 24 Cambridge Review of International Affairs 309, at 325CrossRefGoogle Scholar; Clark, supra note 56.

78 A perfunctory note, which by the standards of communication among states and international organizations would be colder than a declaration of war (see above), could be plausibly criticized from a co-operation perspective as arrogant and relationship-damaging.

79 ‘[T]he ICC has to acknowledge . . . that it is operating in an international political milieu – and that on occasion it would have to sequence its prosecutions to enable political reconciliation processes to run their course. This would require the ICC to step down from the artificial pedestal on which Ocampo placed it, asserting that it does not play politics – when in fact it has appeared that everything that it has done has been politically tainted.’ Murithi supra note 43 at 6. Murithi makes a plausible case against ‘unilateral prosecutorial fundamentalism’ (at 7). See also Schiff, B., ‘The ICC's Potential for Doing Bad When Pursuing Good’, (2012) 26 Ethics & International Affairs 73CrossRefGoogle Scholar; Kaye, supra note 41 at 129; Flint and de Waal supra note 43; Clark, supra note 56.

80 Ainley, supra note 77 at 325 notes criticisms that the ICC fails to work alongside other actors but rather seeks to act as the ‘lead actor’ (ie. imperiously). Arsanjani and Reisman, supra note 21, at 400–3, discuss an OTP statement that it will ‘bear in mind’ Security Council efforts in Ituri. They point out that such a stance may be appropriate for a political entity but ‘a curious, if not anomalous, position for a . . . criminal court, a fortiori one whose designers sought independence from the Security Council’. The point is plausible. At the same time, the authors also explore and employ the other side of the dyad, noting the need for an international body to work with other actors.

81 Amnesty International, ‘Open letter to the Chief Prosecutor of the International Criminal Court: Comments on the Concept of the Interests of Justice’, 17 June 2005, available <> (accessed 29 January 2015); Human Rights Watch, ‘The Meaning of “The Interests of Justice” in Article 53 of the Rome Statute’, June 2005, <>. These papers offer apologia critiques of taking into account peace, security and other political considerations (namely political judgments, invites manipulation, politicization undermines legitimacy, would lead Court to avoid prosecuting the powerful).

82 Branch, supra note 42 at 182–6.

83 The preamble of the ICC Statute refers to some of these normative underpinnings.

84 First Chautauqua Declaration, August 29, 2007, available at <> (accessed on 29 January 2015). The motif was invoked by former Prosecutor Moreno Ocampo, ‘Building a Future on Peace and Justice’, Nuremberg, 24/25 June.

85 K. Cronin-Furman and A. Taub, ‘Wronging Rights on the Warrant for Bashir’, 18 March 2009, <> (accessed 29 January 2015).

86 I do not disagree with the aspiration of searching for ‘better’ or ‘just right’ solutions, my point is just that there is no unassailable ‘just right’ balance exempt from plausible criticism.

87 At that point, picking the ‘best’ solution becomes more difficult. It would require some other external framework, which would itself be contestable (see discussion below).

88 Criticisms can be relevant and informative in two ways. They are of normative interest in that they can enrich and inform one's ideas about mandate, options, and pitfalls, and they are of strategic interest in so far as they are draining support and affecting the Court's co-operative environment.

89 See Koskenniemi, supra note 9, at 18, and more generally at 1–70.

90 There are different types of tensions and trade-offs in ICL. For example, investigations are expected to be fast, comprehensive, inexpensive, meet high standards, and be conducted without extensive external support. This is a multiple contradiction; thus any given investigative practice must be flawed on more than one of these grounds.

91 G. Simpson, Law, War & Crime (2007) at 11–29.

92 See related discussion of ‘political’ in Nouwen and Werner, supra note 73, at 943–5 and 964, and Krever, T., ‘Unveiling (and Veiling) Politics in International Criminal Trials’, in Schwöbel, C., Critical Approaches to International Law – An Introduction (2014)Google Scholar.

93 See, e.g., Office of the Prosecutor, ‘Policy Paper on Preliminary Examinations’, available <≥ (accessed 29 January 2015).

94 See, e.g., Koskenniemi, supra note 9, at 536.

95 A popular technique in the literature is to assert the (apologist or utopian) agenda of Court officials indirectly, i.e. ‘many observers suspect X’ or ‘it is widely thought that X’. To assess such arguments rigorously, one would examine the intended signification of these assertions. Are they simply asserting a fact about the perceptions of the epistemic community (and if so, how would that advance the argument)? Or are they implicitly inviting the reader to infer the truth of the proposition?