A Social Psychology Model of the Perceived Legitimacy of International Criminal Courts: Implications for the Success of Transitional Justice Mechanisms
The John Marshall Law School
August 8, 2011
45 Vanderbilt Journal of Transnational Law 405 (2012)
There is a large body of literature that argues that positive perceived legitimacy is a critical factor in the success of international criminal courts. That literature also argues that courts can be engineered in such a way that they will be positively perceived by adjusting factors like their institutional structure and outreach efforts. But both theory and abundant evidence indicate that in many situations the perceived legitimacy of international criminal courts has almost nothing to do with these factors.
This article takes the latest research in social psychology and applies it to survey data about how international criminal courts are perceived to understand how affected populations form attitudes about courts and to propose a new model of perceived legitimacy. The resulting conclusions are at odds with most other theorists’ understanding of perceived legitimacy. Where there is a high degree of identification between large parts of the affected population and the “sides” in the conflict that led to the establishment of a court, how the court will be perceived will be determined largely by who the court prosecutes, through a process known as cognitive dissonance. Where the court’s indictments conflict with a group’s dominant internal narrative, members of the group experience cognitive dissonance, which they are strongly motivated to reduce. This dissonance is reduced through a change in attitude about the court. The court is perceived as biased and unjust, which allows the group to discount the indictments and preserve its internal narrative. Thus indictments that conflict with the dominant internal narratives among the various groups will lead directly to lower perceptions of the court’s legitimacy.
This has important implications for transitional justice. Contrary to what many scholars have argued, negative perceived legitimacy is not an indication that a court is failing. Rather, it is evidence of a mismatch between internal narratives about the conflict and what actually happened. It is this mismatch that ultimately causes negative perceptions of the court when members of the group are prosecuted. This mismatch is also an obstacle to post-conflict reconciliation as it prevents the participants from accepting responsibility and causes each group to blame the other groups for what happened during the conflict. This article argues that courts can serve a useful purpose in transitional justice if they can help align the dominant internal narratives within the various affected populations with what actually happened, and there is evidence that they can although this process is slow. Ultimately, this will improve perceptions of their legitimacy and remove an obstacle to reconciliation. From this perspective, short term negative perceived legitimacy is not necessarily bad. Rather, it is the price to be paid for trying to break down internal narratives that are hindering reconciliation between groups.
Number of Pages in PDF File: 72
Keywords: social psychology, international criminal courts, international criminal law, perceived legitimacy, cognitive dissonance, heuristics, confirmation bias, attitude polarization, tipping point, ICTY, SCSL, ECCC, IMT, Regulation 64
JEL Classification: D7, K33
Date posted: August 12, 2011 ; Last revised: February 21, 2014