The International Criminal Court and the Legitimacy of Exercise

Abstract

Drawing on the distinction offered by d’Aspremont and De Brabandere concerning the “legitimacy of origin” and the “legitimacy of exercise”, this Chapter looks into some of the legitimacy challenges facing the contemporary system of international justice, with a specific eye on analyzing how the practices utilized by the ICC impact perceptions of the Court’s legitimacy. Accordingly, the Chapter does not primarily aim at discussing whether the ICC as an institution has the right to existence and the authority to rule, but instead whether the manners in which the organs of the Court define their own mandate and exercise their powers contribute to building the legitimacy legitimacy of a Court, described by some as “the most important institutional innovation since the founding of the United Nations”. The Chapter does so by identifying key areas of contestation with respect to how the ICC exercises its powers and discusses how this impacts the legitimacy of the institution – and more broadly the system of international justice. As will be shown, these matters of contestation are closely linked to inherent tensions between, on the one hand, claiming adherence to notions such as legality, rights and universality and, on the other hand, accommodating or promoting a range of policy concerns, ranging from advancing the objective of combating impunity for serious crimes to the need to operate efficiently within an international system still largely defined by state sovereignty. Put in simpler terms: the ICC is often “trapped” in-between the demands of legalism and the need to consider policy. As opposed to sacrificing one for the other, this Chapter suggests that building the legitimacy of the ICC depends on how well the Court manages to navigate these contravening commitments and demands. Indeed, the very survival of the Court may ultimately depend on whether it is able to strike the right balance between these conflicting demands.