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Comment on the Performance Question: “The ICC has established four key goals regarding, broadly, its proceedings, leadership, witness security, and victim access. What are the appropriate ways to measure the ICC’s progress towards those stated goals? How can the performance of the ICC as a whole be properly assessed?”

Institutional Legitimacy as a Performance Indicator for the ICC

The performance of the ICC can best be measured by the degree of institutional legitimacy the Court has gained since its inception. While measuring the institutional legitimacy of the ICC is a tall order, it is a task worth considering because an institution’s legitimacy is integral to its relevance and continuance.

Introduction

On October 12, 2016 Brundi became the first country to announce its intention to withdraw from the International Criminal Court (the “ICC” or the “Court”).1 Following Brundi’s decision, South Africa also announced its plan to leave the ICC.2 On October 15, 2016 Gambia became the third country to declare its plan to withdraw from the ICC.3 The decision of these countries to leave the Court has created a fear that other African nations will soon follow their footsteps.4 If more state parties decide to leave the ICC, the institution’s legitimacy will be severely damaged. In the midst of these countries’ decisions, perhaps now is the best time to analyze how the Court’s performance has contributed to the institution’s legitimacy. Such understanding allows the Court to analyze the legitimacy challenges it faces and to find a remedy to improve its performance, thereby increasing its legitimacy.

The question by posed by the ICC tasks the author with proposing Court-wide performance indicators to measure the Court’ progress with respect to four key goals. The four goals identified by the questions are (1) expeditiousness and fairness of the Court’s proceedings, (2) effectiveness of the ICC’s leadership and management, (3) implementation of adequate security measures, and (4) adequate access to the Court for victims. The question identifies these four goals as “critical for assessing the performance of the ICC as a whole.”

Measuring the Court’s progress with respect to the aforementioned goals exposes the Court’s performance with respect to functions exclusively within its control. However, measuring the ICC’s progress with respect to only these goals provides an incomplete picture of the Court’s overall progress. The ICC’s performance is not only related to factors within its control but also factors extrinsic to it. While the Court’s efforts to increase the access of victims to it, or to ensure transparency and expeditiousness of its proceedings are important in the institution’s success, these factors are simply not enough to maintain the Court’s relevance in an emerging regime of international criminal law.

This comment proposes that the best performance indicator to measure the Court’s overall progress is the degree of the legitimacy it has gained since its inception.5 The Court’s reliance on measuring and improving its performance only in connection to the functions that it has complete control over, comes at the expense of overlooking factors that significantly contribute to the Court’s relevance and continuance. Legitimacy is integral to the ICC’s survival and relevance in the international community. First, to achieve its goal of preventing future mass atrocities, the ICC must rely on norm building and voluntary compliance, which can only be achieved if the ICC is perceived as a legitimate institution. Second, to obtain compliance with its decisions, the Court solely relies on the actions of its states parties. As a result, the Court must be perceived as a legitimate authority among the states parties in order to give effect to its orders. Additionally, empirical studies have found that public’s perception of an institution’s legitimacy are directly linked to the institution’s performance. In other words, an institution is perceived as legitimate to the extent that it performs its duties effectively and fairly.

It is important to note that the purpose of this comment is to propose legitimacy as a performance indicator the Court should consider. In other words, application of the proposed measure to the ICC is outside the scope of this comment. Also, this comment does not discuss what is the adequate degree of legitimacy for the Court to maintain its existence and relevance within the international community.

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Legitimacy is Essential for the ICC to Achieve its Goal of Preventing Future Crimes

The Rome Statute, the Court’s governing document, identifies preventing the most serious crimes of concern to the international community as one of the goals of the ICC.6 Deterrence and retribution are unquestionably important goals of an international criminal court.7 While in the domestic context, criminal sanctions may deter an individual perpetrator from committing a crime; in the international context criminal sanctions are inadequate to prevent mass atrocities.8

The underlying rationale for the theory of deterrence by the threat of punishment is its assumption that criminals are rational actors, an assumption that does not apply to perpetrators of mass atrocities. In the international criminal context, there are good reasons to believe that perpetrators of mass atrocities are unlikely to consider the legal consequences of their actions before committing crimes.9 Mass violence occurs in “unique societal and historical circumstances, led by psychologically unstable individuals.”10As scholars have correctly recognized, the ICC’s goal of crime prevention “should not be confused with the ideas of specific and general deterrence.”11 Therefore, the deterrence model is not a viable method for the Court to accomplish its goal of crime prevention.

The Court will accomplish true crime prevention by creating a normative environment in which committing serious crimes or mass atrocities are not tolerated.12 Achieving this goal is possible, only if the Court is perceived as a legitimate institution among its constituency. Those justice mechanisms that are perceived as legitimate “will be more effective in reconstructing social norms concerning mass violence.”13 In other words, obtaining an adequate degree of legitimacy, will enable the ICC to re-construct social norms against mass violence and therefore change the behavior and the belief system of the perpetrator.14 Consequently, achieving legitimacy is of paramount importance to an international criminal court because it enables it to achieve compliance without the threat of punishment.15 An international criminal tribunal is effective only to the extent it can compel compliance with its orders.16

The need for the ICC to obtain an adequate degree of legitimacy is exacerbated, given the fact that the Court lacks an independent enforcement mechanism. The lack of an international police force to enforce the Court’s orders or decisions undermines its efficacy to prevent future crimes, even if perpetrators of mass atrocities are assumed to consider the risk of sanctions and arrests in their calculations for committing the crime in the first place. Therefore, the ICC cannot rest compliance with its decisions on the notion that committing mass atrocities is deterred by the risk of being caught and punished.

Obtaining an adequate degree of legitimacy, on the other hand, will give the Court the necessary authority to impact the decision calculus of perpetrators.17 If the ICC is perceived as a legitimate institution, its constituencies respect and defer to its rulings even when they disagree with them, irrespective of the threat of sanctions.18 Consequently, it is imperative for the ICC to enjoy a certain level of legitimacy to be able to reconstruct societal norms against mass atrocities and achieve its goal of crime prevention.

Legitimacy Increases Support for the Court’s Decisions

Not only legitimacy is integral to the Court’s ability to reach its goal of crime deterrence, it is important to the Court’s ability establish authority among its constituency. Democratic institutions derive their legitimacy in large part from the democratic decision-making process.19 An institution that was not created through the democratic process, therefore, suffers from an inherent legitimacy deficiency. In the domestic context, scholars have learned much about the legitimacy of national courts.20 For instance, with respect to the U.S. Supreme Court, it has been noted that the institution “ is heavily dependent upon legitimacy for its efficacy and survival.”21 Even the Justices of the U.S. Supreme Court are aware of the significance of legitimacy to their institution’s authority. In their opinion in Planned Parenthood v. Casey, Justices O’Connor, Souter, and Kennedy wrote:

The [Supreme] Court’s power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people’s acceptance of the Judiciary as fit to determine what the Nation’s law means and to declare what it demands.22

Two main reasons explain why legitimacy is essential to the existence of a national court like the U.S. Supreme Court.

First, most national courts lack an independent police force to enforce their decision. For instance, the U.S. Supreme Court relies solely on the executive branch to enforce compliance with its decisions.23 Second, an un-elected national court will likely face situations in which the interest of law necessitates a decision against the preferences of the majority of its constituency. In such situations, the decisions of a court are vulnerable to backlash from the majority.24

Similar to a domestic court, which relies on other institutions to implement its decisions, the ICC relies solely on the actions of its states parties to implement its arrest warrants or other orders. If the Court lacks legitimacy among those bodies that are to implement its decision, the Court will become irrelevant.

Additionally, the ICC suffers from a similar vulnerability than that of the domestic courts in terms of reactions to its unpopular decisions. The issue with the vulnerability of the ICC’s decisions is more complex than that of a national Court, because the ICC’s rulings impact a wider range of actors (i.e. the victims of the mass atrocities, the ruling elite of a state party, etc.). Due to its mandate to prosecute the perpetrators of the most serious crimes of concern to the international community irrespective of their status, the ICC may confront situations in which its orders interfere with the preferences of a ruling elite or with states parties’ national laws.25 In such circumstances the vulnerability of the ICC’s decision is exacerbated.

South Africa’s justification for its withdrawal provides a good example of the vulnerability the Court suffers from with respect to its decision. South Africa ignored an arrest warrant issued by the ICC for the arrest of Sudanese President, claiming that the Court’s order was inconsistent with South Africa’s law, which granted diplomatic immunity to the sitting heads of states.26 South Africa decided to leave the Court on the basis that the Court’s arrest warrant was in conflict with South Africa’s law.27 South Africa’s decision to withdraw from the ICC on the basis of an unpopular decision of the Court is alarming and reflects the legitimacy challenges the Court has to confront. An institution that enjoys an adequate degree of legitimacy finds that its decisions, no matter how unpopular they might be, are accepted and complied with.28 Consequently, the ICC will be more effective in implementing its decisions, when it gains an adequate level of legitimacy.29 Thus, to ensure that its decisions are respected, the Court has to make it its goal to enhance its legitimacy among those under its jurisdiction.

Legitimacy Reflects the Performance of the ICC

The foregoing paragraphs discussed why legitimacy is of paramount importance to the Court’s relevance and survival. This paragraph focuses on the link between the Court’s performance and its legitimacy. In other words, this section explains why legitimacy is a plausible performance indicator for the ICC. If legitimacy is shaped by factors unrelated to the Court’s performance, using legitimacy as a performance indicator does not reveal much about the Court’s progress. Additionally, if legitimacy is entirely shaped and influenced by factors outside the Court’s control, undertaking the complex task of measuring the ICC’s legitimacy provides little, if any, information about the Court’s performance.

The Rome Statute, which created the ICC, is a treaty. Therefore, with limited exceptions, the consent of the states to the Rome Statute is a prerequisite to the Court’s exercise of jurisdiction.30 The ICC’s constituency is thus compromised of the states that assent to its jurisdiction and the nationals of the consenting states. Therefore, it is important to examine the factors influencing the legitimacy of the ICC among its states parties as well as those shaping the Court’s legitimacy among the nationals of the states parties.

A recent study conducted on six international adjudicative bodies found that states and those actors who influence the states’ policies (i.e. non-governmental organizations) are more likely to perceive a tribunal as legitimate if the tribunal provides fair processes and has unbiased decision-makers.31 Specifically, the study concluded that states or policy-influencing actors perceive an international judicial body as legitimate to the extent that:

“(I)t contains a core set of provisions guaranteeing (1) fair process; (2) impartial, competent, and independent adjudicators; (3) impartial and independent branches and panels; and (4) unbiased secretaries and registries.”32

If procedural fairness and impartiality of the decision makers influence states’ perception of a tribunal’s legitimacy, measuring the degree of the Court’s legitimacy may in fact shed some light on its performance with respect to achieving procedural fairness.

Similarly, a study done on the legitimacy of national courts found that publics’ view of the courts’ legitimacy is primarily shaped by the degree of procedural fairness achieved by them.33 Therefore the nationals of states parties (i.e. victims of atrocities, and perpetrators, etc.) are more likely to find the Court legitimate when it has accomplished procedural fairness. While the concept of procedural fairness is abstract and likely shaped by subjective factors, the fact that legitimacy is influenced by the Court’s procedures suggests that legitimacy is not unrelated to the performance of the Court.

On the other hand a study applying social psychology research to evaluate the legitimacy of international criminal courts has found that in the majority of conflicts, the perception of a court’s legitimacy among the affected population is primarily shaped by whom the court indicts.34 In particular, the study concluded that when an affected group identifies with one of the sides in a conflict and has a “dominant internal narrative that denies responsibility for the conflict” then indicting the members of that group will result in a negative perception of the tribunal.35

Analyzing the legitimacy of the ICTY among the affected population, the study found that the tribunal enjoyed much less legitimacy among the Serbs ethnic groups, because ICTY found Serbs to be the mastermind of the atrocities in Bosnia and this went against Serbs’ belief that they were the victims in the conflict rather than the mastermind behind it.36 The study concluded that in circumstances where all the affected population in the conflict has taken sides in the conflict, “the perceived legitimacy of international criminal courts is likely to be a negative sum game.”37 If the legitimacy of the ICC is entirely related to its indictment decisions, then measuring legitimacy will yield no information about the Court’s performance. This will likely not be the case for two reasons. First, the aforementioned study did not examine the legitimacy of the ICC and focused solely on temporary international tribunals, like the ICTY. Unlike ICTY, the ICC is a permanent international tribunal in charge of prosecuting war crimes within the territories of its states parties. Since the ICC effectuates justice in variety of conflict situations, views of the nationals subject to its jurisdiction is likely impacted by the Court’s actions in other jurisdictions as well as those with respect to their own territory. Second, the study’s hypothesis applies to a narrow set of circumstances. The study’s findings are cabined to those circumstances when each side of the conflict has taken sides with respect to it. Therefore, the study fails to provide an adequate framework for the legitimacy of the ICC.

Measuring Legitimacy

Although the International Criminal Court is a unique institution in its structure and with respect to its constituency and like no other national courts, adopting a research design similar to that used in measuring the legitimacy of a national court may be a good starting point. In a 2003 study, Gibson, Calderia, and Spence measured the legitimacy of the Supreme Court of the United States, using the diffuse support of the Supreme Court as an indicator of its legitimacy.38 They explained that diffuse support refers to a “reservoir of favorable attitudes or good will that helps members to accept or tolerate outputs to which they are opposed or the effects of which they see as damaging to their wants.”39 They further describe that diffuse support refers to “institutional loyalty; it is support that is not contingent upon satisfaction with the immediate outputs of the institution.”40 They distinguished diffuse support from specific support, explaining that the latter indicates “satisfaction with the immediate output of the institution.”41 Finally, they conceptualized loyalty as “opposition to making fundamental structural and functional changes in the institution.”42 They hypothesized that those with no loyalty toward the U.S. Supreme Court are willing to make major changes in the structure and functions of the Supreme Court.43 From this, they inferred that those Americans, who supported fundamental structural changes to the Supreme Court extended little legitimacy to the institution.44

They measured the institutional legitimacy of the U.S. Supreme Court by imposing six different statements to a sample of the American mass public and over-sample of African Americans and then analyzed the respondents’ degree of agreement or disagreement with these statements to measure the level of the diffuse support the Supreme Court enjoyed. For the purpose of the study they conducted 1,006 telephone interviews over the course of a month.45 Their sample was representative of English-speaking households in 48 contiguous U.S. state and Washington D.C.46 The questions they imposed to the respondents and their answers indicating institutional loyalty is summarized in Table 1.

Table 1. Survey on Institutional Legitimacy of the U.S. Supreme Court
Questions Responses Indicating Institutional Loyalty
If the U.S. Supreme Court started making a lot of decisions that most people with, it might be better to do away with the Supreme Court altogether. Disagree
The right of the Supreme Court to decide certain types of controversial issues should be reduced. Disagree
The Supreme Court can usually be trusted to make decisions that are right for the country as a whole. Agree
The decisions of the U.S. Supreme Court favor some groups more than others. Disagree
The U.S. Supreme Court gets too mixed up in politics. Disagree
The U.S. Supreme Court should have the right to say what the Constitution means, even when the majority of the people disagree with the Court's decision. Agree

Caldeira and Gibson had used a similar method prior to the aforementioned study to measure the degree of the diffuse support for the European Court of Justice (“ECJ”), using a survey of mass publics.47 In undertaking the task of measuring ECJ’s legitimacy, Caldeira and Gibson correctly recognized that “[t]he lack of a direct electoral connection, the inability to share in the legitimacy of the nation-states, frequent adjudication of conflicts between national and European Union (EU) law, and the traditionally heavy reliance of legal institutions on the goodwill of ordinary citizens” created significant problems with respect to the institutional legitimacy of the ECJ.48

The researchers used the degree of diffuse support as an indicator of legitimacy in their study of the U.S. Supreme Court as well as their study of the ECJ. However, in their study evaluating the legitimacy of the ECJ, they restricted their survey to a sample of “attentive public” within EU Member Countries subject to the jurisdiction of the ECJ.49 The “attentive public” referred to those individuals who had a degree of awareness about ECJ.50 This was based on their realization that those who claimed to have no awareness of the ECJ were unable to make an informed response with respect to their loyalty to the institution. Similar to their study on the U.S. Supreme Court, they defined diffuse support as “institutional commitment—a willingness to defend the institution against structural and functional alterations that would fundamentally alter the role of the institution in society.”51

To measure the diffuse support of the European Court of Justice, they posed a series of propositions to respondents from each Member Country of the European Union and then analyzed their answers to determine the degree of institutional commitment ECJ enjoyed.

They first asked the respondents to indicate their agreement or disagreement with the following proposition: “If the European Court of Justice started making a lot of decisions that most people disagree with, it might be better to do away with the Court altogether.”52 They determined that those who agreed with this statement were expressing low levels of institutional commitment to the European Court of Justice.53

They then asked the respondents to determine their agreement or disagreement with respect to ECJ’s decision making function, by the following proposition: “The right of the European Court of Justice to decide certain types of controversial issues should be reduced.”54 With this respect they hypothesized that those who supported the decision making function of the ECJ only to the extent that it rendered favorable decisions exhibited little institutional commitment to ECJ.55 They determined that those who were willing to place restrictions on the decision-making authority of the ECJ were expressing low levels of institutional commitment.56

Additionally, they recognized that a degree of political independence is an essential aspect of a transnational court like the ECJ.57 They explained that if transnational courts are subservient to political institutions, their rule is seriously compromised.58 Therefore, they indicated that another variable reflecting the institutional commitment to ECJ was the willingness to defend its political independence.59 With this respect, they asked the respondents to react to the following statement:

The political independence of the European Court of Justice is essential. Therefore, no other European institution should be able to override Court opinions even if it thinks they are harmful to the European Community.60

They hypothesized that the respondents disagreeing with this assertion exhibited low levels of diffuse support for the institution.61

Measuring the Degree of the ICC’s Diffuse Support

The aforementioned studies measured the legitimacy of the U.S. Supreme Court and the ECJ. These studies provide a good starting point to measure the ICC’s legitimacy. However, studies that aim at measuring the institutional legitimacy of the Court must pay attention to its unique structure, functions and jurisdictional reach. For instance, measures adopting a similar approach must take into account the ICC’s diverse constituents. Studies designed to measure the Court’s legitimacy have to propose proper questions for each relevant actor with respect to the Court’s constituency. The relevant actor may include (1) political elites, (2) victims of mass atrocities, and (3) perpetrators of mass atrocities.

Additionally, the aforementioned studies adopted a quantitative approach for measurement of legitimacy. However, the application of quantitative methods to determine the performance of the ICC has its limitations. In particular, since data collection of the kind used in experimental designs is difficult to come by in an international setting there might be a “temptation to assume that one’s dataset must say something important just because one was able to collect it is very powerful.”62

Enhance its Legitimacy

This comment does not make a normative judgment with respect to the ICC’s legitimacy. However, this section discuses variety of factors the Court can consider to enhance its legitimacy in the international community. One important factor for the ICC to consider is the incorporation of local preferences in the Court’s investigations and prosecutions.63 Since its inception, the Court has chosen prosecution as the main method of accomplishing its mandate. Some scholars have attributed the ICC’s preference for prosecution over other approaches that incorporate the unique cultural context of each situation a design flaw.64

Additionally, local populations in jurisdictions that were subject to the ICC’s prosecutorial efforts have expressed discontent with various aspect of the Court’s approach to justice, including its perceived political bias and its lack of response to local preferences.65 To alleviate some of these concerns and enhance its legitimacy, the Court could incorporate local preferences regarding accountability before it begins indicting the accused.66 Incorporating local preferences in the Prosecutor’s strategy could lead to higher perceptions of legitimacy for the ICC.67

For instance, the ICC’s decision to indict Thomas Lubanga for conscripting child soldiers was widely viewed as a selective prosecution of a defendant for a crime that virtually all perpetrators in the conflict committed and many viewed as a relatively minor crime in the face of other extensive atrocities.68 The Prosecutor’s decision to indict Lubanga led to rumors that Lubanga was only arrested because he killed white people, in particular UN peacekeepers.69 The Prosecutor’s consideration of these factors before its decision to indict Lubanga might have alleviated the risk of local rejection of the ICC.

The ICC has also faced criticism for its work in Uganda.70 According to a population survey conduct in 2007, 76% of the Ugandan population thought that the pursuit of trials could hinder peace processes.71 Additionally, while nearly 60% of the Ugandans surveyed wanted trials for the perpetrators of mass atrocities, a similar number thought that traditional justice mechanism were needed to deal with the atrocities in Northern Uganda.72 Local NGO and international organization in Northern Uganda also suggested non-punitive methods of justice to address the situation there.73 While the idea of prosecution through trial was popular, over half of Ugandans surveyed thought that focus should be on reconciliation and forgiveness as opposed to punishment and approximately 80% wanted to forgive and reintegrate the perpetrators.74 The Court could have avoided the criticisms in Uganda by recognizing and accepting Ugandans’ local preferences for traditional justice mechanisms.

Additionally, the Prosecutor’s discretion to determine which cases to prosecute may be viewed as another impediment to the ICC’s legitimacy.75 Affected populations have accused the ICC as an institution with political bias.76 In particular, the ICC’s disproportionate focus on Africa, has led some to suggest the Court has been designed to impose western norms and justice on African perpetrators.77 This criticism must be viewed in light of the fact that half of the situations in Africa over which the ICC has exercised its jurisdiction, namely the situations in Central African Republic, Democratic Republic of Congo, Mali and Uganda, were the result of self-referrals by those states.78

In these cases, the Prosecutor did not exercise his Prosecutorial discretion. In two situations, Côte d’Ivoire and Kenya, the Prosecutor decided to initiate an investigation in the absence of a referral.79 Despite these justifications for the Court’s focus on African countries, the perception of the Court as an imperialistic institution designed to punish African defendants remain.80 The Court should take these criticisms seriously because they could severely damage the legitimacy of the Court. To address these criticisms, the Court might consider investigating other countries. The Court has already started preliminary examinations in non-African countries like Colombia, and Iraq.81 The ICC has also started investigation in Georgia.82 The ICC’s prosecution of non-African states may alleviate some concerns regarding the most widely cited criticisms of the Court, as being a biased institution and enhance the Court’s legitimacy.

Conclusion

This comment proposes legitimacy as a performance indicator for the ICC. The ICC’s legitimacy is essential to its continuance and survival in an emerging system of international criminal law. Quantitative studies that have measured the legitimacy of the U.S. Supreme Court and ECJ can be used as a plausible starting point for measuring the ICC’s legitimacy. However, these studies should be adjusted to take into account the Court’s unique structure, functions, and jurisdictional reach.  

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    Jeffrey Gettleman, Raising Fears of a Flight from International Criminal Court, Burundi Heads for Exit, N.Y. Times, Oct. 12, 2016, available online. ↩

  2. 2.

    Sewell Chan & Marlise Simons, South Africa to Withdraw From International Criminal Court, N.Y. Times, Oct. 21, 2016, available online. ↩

  3. 3.

    Gambia Withdraws from International Criminal Court, Al Jazeera, Oct. 25, 2016, available online. ↩

  4. 4.

    Chan, supra note 2. ↩

  5. 5.

    Prior studies have suggested legitimacy as a plausible method to measure the effectiveness of transnational justice mechanisms in prior studies. See e.g. Jaya Ramji-Nogales, Designing Bespoke Transitional Justice: A Pluralist Process Approach, 32 Mich. J. Int’l L. 1, 15 (2010), available online.

    (proposing “that the effectiveness of transnational justice mechanisms be measured by perceptions of legitimacy on the part of the relevant actors”);

    See also Stuart K. Ford, A Social Psychology Model of the Perceived Legitimacy of International Courts: Implications for the Success of Transitional Justice Mechanisms, 45 Vand. J. Transnat’l L. 405, 408 (2012), available online.

    (noting that a large body of literature argues that “positive perceived legitimacy is an important factor not only in the success of international criminal courts, but also in the success of all transnational justice mechanisms.”) ↩

  6. 6.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute], Preamble, available online. ↩

  7. 7.

    Ramji-Nogales, supra note 5, at 6. ↩

  8. 8.

    Id. ↩

  9. 9.

    Tomer Broude, The Court Should Avoid All Considerations of Deterrence, Contributing to Crime Prevention by Buttressing a Durable, Consistent, Credible, and Legitimate Normative Environment in which Serious Crimes are not Tolerated, in Contemporary Issues Facing the International Criminal Court (Richard H. Steinberg ed., 2016), earlier version (Oct. 6, 2011) available online. ↩

  10. 10.

    Ramji-Nogales, supra note 5, at 7–8. ↩

  11. 11.

    See Broude, supra note 9. ↩

  12. 12.

    Id. ↩

  13. 13.

    Ramji-Nogales, supra note 5, at 5. ↩

  14. 14.

    Id. ↩

  15. 15.

    Id. at 13. ↩

  16. 16.

    See e.g. Immi Tallgren, The Sensibility and Sense of International Criminal Law, 13 Eur. J. Int’l L. 561, 570–71 (2002), available online. ↩

  17. 17.

    Ramji-Nogales, supra note 5, at 13 (citing Ian Hurd, Legitimacy and Authority in International Politics, 53 Int’l Org. 379, 381 (1999), JSTOR paywall). ↩

  18. 18.

    See e.g. Ramji-Nogales, supra note 5, at 13. ↩

  19. 19.

    See Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 Harv. L. Rev. 1787, 1842–44 (2005), JSTOR paywall; See also Michael L. Wells, “Sociological Legitimacy” in Supreme Court Opinions, 64 Wash. & Lee L. Rev. 1011 (2007), available online. ↩

  20. 20.

    See e.g. James L. Gibson & Michael J. Nelson, The Legitimacy of the U.S. Supreme Court: Conventional Wisdoms, and Recent Challenges Thereto, 10 Ann. Rev. L. & Soc. Sci. 201 (Nov. 2014), Annual Reviews paywall; See also Fallon, supra note 19. ↩

  21. 21.

    Gibson, supra note 19, at 204. ↩

  22. 22.

    Planned Parenthood of Southeastern Pennsylvania et al. v. Casey, Governor of Pennsylvania, et al., 505 U.S. 833, 865 (Jun. 29, 1992), available online. ↩

  23. 23.

    Gibson, supra note 19, at 204. ↩

  24. 24.

    Id. at 204–205. ↩

  25. 25.

    Rome Statute, supra note 6, Preamble ↩

  26. 26.

    Chan, supra note 2. ↩

  27. 27.

    Id. ↩

  28. 28.

    Gregory A. Calderia & James L. Gibson, The Legitimacy of the Court of Justice in the European Union: Models of Institutional Support, 89 Am. Pol. Sci. Rev. 356, 356–7 (Jun. 1995), available online. ↩

  29. 29.

    Id. ↩

  30. 30.

    Pursuant to Art. 13 of the Rome Statute, the ICC may prosecute nationals of non-parties in situations referred to the ICC by the UN Security Counsel; when non-party nationals have committed crimes in a territory of a state that is a party to the Rome Statute; and when the non-party state has consented to the Court’s exercise of jurisdiction over its national. ↩

  31. 31.

    Nienke Grossman, Legitimacy and International Adjudicative Bodies, 41 Geo. Wash. Int’l L. Rev. 107 (2009), available online.

    (The international adjudicative bodies surveyed in the study are: the European Court of Justice (ECJ), the Inter-American Commission on Human Rights (IACHR), the International Centre for Settlement of Investment Disputes (ICSID), the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS), the Permanent Court of Arbitration (PCA), and the Dispute Settlement Body (DSB) of the World Trade Organization (WTO)). ↩

  32. 32.

    Id. at 123–24. ↩

  33. 33.

    Tom R. Tyler, How do the Courts Create Popular Legitimacy?: The Role of Establishing Truth, Punishing Justly, and/or Acting Through Just Procedures, 77 Alb. L. Rev. 1095, 1128 (2014), available online. ↩

  34. 34.

    Ford, supra note 5, at 410–11. ↩

  35. 35.

    Id. at 458. ↩

  36. 36.

    Id. at 414–416. ↩

  37. 37.

    Id. at 462. ↩

  38. 38.

    James L. Gibson, Gregory A. Calderia & Lester Kenyatta Spence, Measuring Attitudes Toward the United States Supreme Court, 47 Am. J. Pol. Sci. 354, 356 (Apr. 2003), available online. ↩

  39. 39.

    Id. ↩

  40. 40.

    Id. ↩

  41. 41.

    Id. ↩

  42. 42.

    Id. at 358. ↩

  43. 43.

    Id. ↩

  44. 44.

    Id. ↩

  45. 45.

    Id. at 366. ↩

  46. 46.

    Id. ↩

  47. 47.

    Calderia & Gibson, supra note 28. ↩

  48. 48.

    Id. at 356. ↩

  49. 49.

    Id. at 363. ↩

  50. 50.

    Id. at 362. ↩

  51. 51.

    Id. at 363. ↩

  52. 52.

    Id. ↩

  53. 53.

    Id. ↩

  54. 54.

    Id. ↩

  55. 55.

    Id. ↩

  56. 56.

    Id. ↩

  57. 57.

    Id. ↩

  58. 58.

    Id. ↩

  59. 59.

    Id. ↩

  60. 60.

    Id. ↩

  61. 61.

    Id. ↩

  62. 62.

    Kenneth Anderson, The ICC Would Increase Its Prevention Ability If the Prosecutor’s Discretion Were More Visibly Limited, in Contemporary Issues Facing the International Criminal Court (Richard H. Steinberg ed., 2016), earlier version (Oct. 6, 2011), available online. ↩

  63. 63.

    Ramji-Nogales, supra note 5. ↩

  64. 64.

    See e.g. Ramji-Nogales, supra note 5. ↩

  65. 65.

    See Param-Preet Singh, Elizabeth Evenson & Elise Keppler, Human Rights Watch, Courting History: The Landmark International Criminal Court’s First Five Years 127–30 (2008), available online. ↩

  66. 66.

    Ramji-Nogales, supra note 5, at 47–48. ↩

  67. 67.

    Id. ↩

  68. 68.

    Id. at 47–49. ↩

  69. 69.

    Singh et al., supra note 65. ↩

  70. 70.

    Ramji-Nogales, supra note 5, at 47–48. ↩

  71. 71.

    Singh et al., supra note 65. ↩

  72. 72.

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