A Global Public Goods Perspective on the Legitimacy of the International Criminal Court
62 Pages Posted: 3 Oct 2017 Last revised: 5 Oct 2017
Date Written: September 4, 2017
The International Criminal Court (ICC) is facing its worst crisis since its creation. At the end of 2016, three States decided to withdraw from the Rome Statute (RS). There is a risk that the institution falls entirely apart. But, already in 2014, the Court was qualified as being in trouble as a legitimacy debate arose in the wake of a compliance debacle with respect to the situations in Sudan, Libya and Kenya. In order to achieve effective prosecutions and trials, the Court needs States’ cooperation. I will show that there are three interdependent legitimacy issues that have been raised for non-compliance with the ICC which also relate to the institutional design necessary to effectively provide a global public good. I will demonstrate that the Court’s investigations and prosecutions in these three States are affected by source, procedural and outcome legitimacy eroding factors. Due to the entanglement between source and procedural legitimacy we may have to consider tying both. On first glance, a compliance pull could be generated by, when source legitimacy is lacking, strictly sticking to the State’s interest in the exercise of prosecutorial discretion as to who to prosecute. The paper will argue that the latter option would create a global public bad, as it entails negative externalities and excludes some victims from benefiting from the Court. Nonetheless, the paper will show that such calculations are already made with regards to so-called self-referrals, i.e. where source legitimacy is not questioned. With respect to outcome legitimacy, the paper will argue that the ICC is a victim of the Security Council's inability to exercise the responsibility assign to it by the UN Charter and the Rome Statute.
Keywords: International Criminal Court, Legitimacy, Security Council, Global Public Goods
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