Programs in International Justice and Society

"Linguistic profiling: An under-recognized force in the justice system and beyond"

LCJ Hub member Shawna Shapiro, Associate Professor of writing and linguistics at Middlebury College in the US, calls our attention to an often unperceived influence on our interactions and understandings, including those in the legal field. Read more about Shawna's work at her college webpage.

One of the commonplaces in the legal profession and the criminal justice system is that language matters. Language is what allows us to craft persuasive arguments and coherent narratives, in service of justice and accountability. But language can also be an axis around which injustice revolves, in part because it is something we think of as neutral and changeable. Someone whose speech or writing is thought of as “uneducated,” “inarticulate,” or “non-standard” simply needs to change their language, like slipping on a more appropriate suit of clothes for a job interview or courtroom testimony. What we miss is that language—or languaging, as linguists like to put it, emphasizing a dynamic process rather than a static object—is inextricably linked to our histories, privileges, and social identities.

In this Spotlight, I consider the role that linguistic prejudice often plays in the U.S. criminal justice system, as well as in the legal profession more generally. I focus, in particular, on the concept of linguistic profiling, which is the process of drawing (often tacit) assumptions about an individual or group based on particular features of their speech or writing. Linguists such John Baugh (see here for a more detailed discussion of Baugh’s work) and Rosina Lippi-Green have shown how this profiling process, which is often informed by our implicit biases about race/ethnicity, socioeconomic class, gender, etc., shapes policies and practices in education, housing, the workplace, and other sectors, including the justice system.

One of the most prominent recent examples of linguistic profiling can be seen in the treatment of Rachel Jeantel, a key witness in the trial of George Zimmerman, the man who murdered Trayvon Martin. In their 2016 analysis of how Jeantel was treated by participants in the Zimmerman trial, as well as by public media, John R. Rickford and Sharese King show how Jeantel was belittled and dismissed, often based on misunderstandings and biased assumptions about her manner of speaking. She was seen as sullen, inarticulate, and untrustworthy, largely because some features of her spoken vernacular were unfamiliar to the (mostly White) judge, jury, and attorneys. Rickford and King go so far as to suggest that inaccurate interpretations of Jeantel’s statements before and during the trial may have impacted the eventual “not guilty” ruling.

Yet linguistic profiling does not end with speech; in fact, some of the harshest judgments against marginalized groups hinge on interpretations of their writing. My own interest in linguistic profiling, which I explore in my newly published book, Cultivating Critical Language Awareness in the Writing Classroom (Routledge 2022) has to do with the assumptions educators often make about students—and about each other—based on how they write. Statements like “Clear writing indicates clear thinking” or “If you didn’t proofread, you must not care” seem benign, but can lead to mistreatment of students from linguistically minoritized backgrounds, including students for whom English is an Additional Language and those who use other varieties of English at home, including African American Vernacular English (AAVE).

Linguistic profiling of writers is also a prevalent issue in the legal profession, and is one component of the widely documented systemic racism in the field. A 2014 study by Arin Reeves found that perceptions of writing ability in legal memos varied depending on the race of the writer: raters who thought the writer was African American identified more errors (factual, grammatical, and technical) than those who thought the writer was Caucasian. The exact same memo consistently received different ratings based on the readers’ racial biases.

What can be done to combat linguistic profiling? In the field of education, we need to integrate more knowledge about language—particularly about sociolinguistics and Critical Language Awareness—into teacher education programs. A growing number of scholars and practitioners have provided models for doing so, and I am one of a number of people trying to forge alliances among us online. I suspect that a similar shift needs to happen—and may be happening already—in pre-professional and continuing education programs for those in other fields, including law and justice. One first step is to share basic knowledge about linguistic profiling, including the fact that in many cases, it is not even a prosecutable crime, unless it can be explicitly linked to a protected category such as gender, race/ethnicity, or nation of origin.

Lippi-Green has claimed that linguistic profiling is “so commonly accepted, so widely perceived as appropriate, that it must be seen as the last widely open backdoor to discrimination” (1994, p. 171). If this is still true—and sadly, I am convinced it is—those of us committed to social justice must work to close that door as forcefully as possible, drawing on all we know about language, culture, power, and privilege.

The Permanent Court of Arbitration (PCA) has elected Marcin Czepelak, Ambassador of the Republic of Poland to the Kingdom of the Netherlands, as its next Secretary-General. The PCA is an intergovernmental organization established by the 1899 Hague Convention on the Pacific Settlement of International Disputes. Headquartered at the Peace Palace in The Hague, the Netherlands, the PCA facilitates arbitration, conciliation, fact-finding, and other dispute resolution proceedings among various combinations of States, State entities, intergovernmental organizations, and private parties. Mr. Czepelak succeeds Hugo Hans Siblisz of The Netherlands, who has served as PCA Secretary-General since 2012. Read more about the Mr. Czepelak and the PCA at the institution’s website.

A ban on wearing hijab, the Muslim headscarf, in the southern Indian state of Karnataka has prompted local protests as well as condemnation from many other parts of the world. The dispute began when a group of Muslim students protested after they were barred from entering their college while wearing hijab. The government of Karnataka, controlled by a Hindu nationalist party, states that it had simply banned clothes that “disturb equality, integrity and public order.” CNN reports, however, that some believe this ban represents a crackdown on India’s Muslim minority. Since the dispute began, several other colleges have seen protests both for and against the hijab ban, with members of Hindu right-wing groups staging counter-protests wearing their iconic saffron shawls. Various high-profile individuals have publicly supported the Muslim students, including Nobel Prize winner Malala Yousafzai, climate activist Greta Thunberg, and Manchester United footballer Paul Pogba.  According to Human Rights Watch, “The hijab ban violates India’s obligations under international human rights law which guarantees the rights to freely manifest one’s religious beliefs, to freedom of expression, and to education without discrimination. Likewise, forcing women and girls to wear religious garments also violates religious freedom and privacy rights under international law.”

Five persons born in the Chagos Islands, an archipelago in the Indian Ocean, and deported 50 years ago by British authorities recently had the chance to make an independent visit of their homeland.  “This is the first visit organised by the Mauritian government, which is determined to regain control of the Chagos archipelago,” The Guardian reports. “International court rulings and a majority vote in the UN general assembly have confirmed that the UK ‘unlawfully’ detached the islands from Mauritius before independence and must return them.” The British were not alone in this illegal action, however. The BBC explains that the UK  “had already cut a secret deal with the US government to lease Diego Garcia,” an island in the Chagos that subsequently became the site of a US military base. The status of the Chagos Islands became the subject of a case at the International Court of Justice (ICJ), which ruled in 2019 that “the process of decolonization of Mauritius was not lawfully completed when that country acceded to independence” and that “the United Kingdom is under an obligation to bring to an end its administration of the Chagos Archipelago as rapidly as possible.” The UK insists it retains sovereignty over the territory, however, noting that the ICJ ruling was only advisory. 

The Northwestern Pritzker School of Law’s Center for International Human Rights will award its seventh Global Jurist of the Year Award to all women judges in Afghanistan, in recognition of the courage they all have shown under the difficult circumstances of the last months. A select group of Afghan women judges who have left Afghanistan will accept the award on behalf of all, led by Judge Anisa Rasooli.  Known as “the RBG of Afghanistan,” Judge Rasooli is the only woman to be nominated twice to the Afghan Supreme Council.

The Global Jurist of the Year Award is designed to honor a sitting judge, whether in an international or national court, who has demonstrated in his or her career courage in the face of adversity to uphold and defend fundamental human rights or the principles of international criminal justice. Jurists from all nations and tribunals are eligible for consideration. Read more about the award and see the names of past recipients. 

The invasion of Ukraine by Russia has raised many questions about the legality of this action and the ability of international law to respond to it. But the pace of events in Ukraine is also making for a shifting legal reaction.

International Criminal Court (ICC) Prosecutor Karim Khan issued a statement  shortly after the invasion began, reminding the public that Ukraine has accepted ad hoc ICC jurisdiction over any act of genocide, crime against humanity or war crime committed within the territory of Ukraine from 20 February 2014 onwards. “Any person who commits such crimes, including by ordering, inciting, or contributing in another manner to the commission of these crimes, may be liable to prosecution before the Court, with full respect for the principle of complementarity. It is imperative that all parties to the conflict respect their obligations under international humanitarian law.” The crime of aggression, however – defined by the ICC as the planning, preparation, initiation, or execution by a senior political or military leader of an act of aggression that manifestly violates the UN Charter – cannot be investigated and prosecuted by the ICC as neither Ukraine nor the Russian Federation are State Parties to the Rome Statute.

In an article from the European Council on Foreign Relations, commentator Anthony Dworkin delves into some of the obstacles that exist to holding Russia accountable for its actions. “The prohibition on the unjustified use of force is the cornerstone of modern international law. However, that does not necessarily mean that there is any tribunal that can pass judgement on Russia’s violation.” Dworkin notes that in addition to the limitations of ICC jurisdiction over this situation, the International Court of Justice could only settle a dispute between Ukraine and Russia if both parties agree that it should play that role. As to holding Russian leaders accountable in a domestic court under universal jurisdiction, this could probably only happen when they are no longer in office and happen to visit a country willing to take on such a prosecution. Dworkin concludes, “Russia and Putin may be breaking international law without immediately facing legal proceedings, but this does not mean international law is irrelevant. Countries that have condemned Russia’s actions and taken measures to sanction it are not only trying to protect Ukraine and its citizens, but also defending the principle that relationships between states should be shaped by legal principles rather than merely the balance of power.”

Despite the obstacles noted above, Ukraine filed an application against Russia before the ICJ on 26 February, asserting that “the Russian Federation has falsely claimed that acts of genocide have occurred in the Luhansk and Donetsk oblasts of Ukraine, and on that basis recognized the so-called ‘Donetsk People’s Republic’ and ‘Luhansk People’s Republic’, and then declared and implemented a ‘special military operation’ against Ukraine”. Ukraine seeks to found the Court’s jurisdiction on Article 36, paragraph 1, of the Statute of the Court and on Article IX of the Genocide Convention, to which both States are parties. Article IX of the Genocide Convention specifically provides that disputes relating to the responsibility of a State for genocide are to be submitted to the ICJ. Together with its application to the ICJ, Ukraine filed a Request for the indication of provisional measures by the Court “in order to prevent irreparable prejudice to the rights of Ukraine and its people and to avoid aggravating or extending the dispute between the parties under the Genocide Convention”.

In late-breaking news, the ICC Prosecutor announced on 28 February that he would open an investigation into events in Ukraine, noting that "there is a reasonable basis to believe that both alleged war crimes and crimes against humanity have been committed in Ukraine in relation to the events already assessed during the preliminary examination by the Office [of the Prosecutor]."

In other news about the ICJ, the Court recently fixed the amount that Uganda should pay in reparations to the Democratic Republic of the Congo for a conflict that took place from 1998 to 2003: $325 million. This determination follows a 2005 ICJ judgment in the case of Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), which indicated that reparations be paid for armed aggression perpetrated by Uganda on the territory of the DRC “in flagrant violation of the United Nations Charter and of the Charter of the Organization of African Unity.” The two parties could not, however, subsequently agree on  terms for the reparations. A UN press release notes that the Court “broke down the compensation, awarding the DRC $225 million for damage to persons, which includes loss of life, rape, recruitment of child soldiers and displacement of civilians. The country will also receive $40 million for damage to property, and $60 million for damage to natural resources, including the looting and plundering of gold, diamonds and timber.” While this amount might seem large – and it is the largest reparation award by an international court for gross violations of human rights to date – journalist Janet Anderson writes that “the sum falls far short of the 11 billion dollars DRC had asked for.” In the end, she observes, the level of reparations may be more about what the offending party can afford than what the claimant deserves.

The Inter-American Commission on Human Rights (IACHR) has issued precautionary measures in the case of Melissa Lucio, a woman held in solitary confinement on death row for the past 14 years in the US state of Texas. Despite her claims of innocence, Lucio is scheduled for execution on 27 April 2022.  In an IACHR press release, the Commission asserts that “the rights of Melissa Lucio are at risk due to the imminent execution of the death penalty and its subsequent effects on her petition which is currently under the Commission's analysis; as well as her ongoing conditions of detention in solitary confinement on death row and their impact on her rights to life and personal integrity.”

The Court of Justice of the European Union (CJEU) recently dismissed challenges by Poland and Hungary to a new tool that would cut funding by the 27-nation EU bloc for members who flout democratic values. According to Reuters, the ruling “marks a milestone in the EU's feud with Poland and Hungary's populist rulers, criticised for curbing the rights of women, LGBT people and migrants, and for stifling the freedom of courts, media, academics and NGOs.” The tool in question is the Rule of Law Conditionality Regulation, which enables European institutions to withhold funds from a member state if breaches of the rule of law in that state affect the EU’s budget or its financial interests “sufficiently directly.” Read more about the CJEU ruling in an interview with expert Kim Lane Scheppele from the World Justice Project. 

Several recent publications bring systems and challenges related to refugee resettlement into focus. 
 
The Refugee in International Law (Oxford University Press 2021), edited by Guy S. Goodwill and Jane McAdam and now in its fourth edition, provides a detailed, comprehensive analysis of the current state of international refugee law. It also features two brand new chapters: on nationality, statelessness, and protection; and on displacement related to the impacts of disasters and climate change. Click here to listen to a podcast and view a book launch event.

Two articles by Laura Smith-Khan (University of Technology Sydney) examine the assessment of refugee credibility in Australia. “’I Try not to be Dominant, but I’m a Lawyer!’: Advisor Resources, Context, and Refugee Credibility” (Journal of Refugee Studies 34:4, December 2021), analyses qualitative interviews with eight Australian migration advisors, exploring the key resources they report drawing on when contributing to client credibility in refugee status determination processes. “Incorporating Sociolinguistic Perspectives in Australian Refugee Credibility Assessments: The Case of CRL18”  (Journal of international Migration and Integration, January 2022), explores this critical part of the refugee resettlement process through the lens of language. It builds on existing critical examinations by presenting a case study of a successful appeal in the Federal Court of Australia (FCA) which overturned a decision involving one such problematic credibility assessment. The article establishes that credibility assessments often rely on flawed language ideologies and reasoning that transform the asylum seeker into the sole participant responsible for the texts produced in institutional processes.

A special issue of the Journal of Human Rights and the Environment on the theme of “Post-Human Legalities” is now available in print and online. This special issue provides an invigorating variety of perspectives and experiments at the interface between the more-than-human world and ecocentric legal approaches. Articles include an analysis of posthuman legalities and law; speech and climate change; capabilities of posthumans in the climate fight; alter-transitional justice and transforming unjust relations with the more-than-human (open access), and "response-abilities" of care in more-than-human worlds (open access).