The War in Ukraine and the Legitimacy of the International Criminal Court
32 Pages Posted: 3 Oct 2022
Date Written: October 2, 2022
The news of the many atrocities being committed as the war in Ukraine rages on has prompted a chorus of calls seeking to hold perpetrators accountable. Heralded as a critical player is the International Criminal Court (the ICC). Unlike in the past where states have decried requests to increase the Court’s budget or refused to cooperate with the Office of the Prosecutor’s (OTP) efforts to gather evidence or arrest suspects, states are generously donating funding and other resources to bolster the Court’s likelihood of bringing successful prosecutions.
This Article argues that the unique situation surrounding state support for the ICC’s critical role in prosecuting crimes resulting from the Russian invasion may enhance the legitimacy of the Court. International institutions like the ICC can be legitimate both objectively and subjectively. Objective legitimacy is present if the institution’s processes conform to normative positive performance criteria; for example, it provides due process to defendants standing trial. Subjective legitimacy is present when the relevant audience believes that the institution is properly carrying out its functions and fulfilling its mandate. This Article focuses on subjective, or perceived, legitimacy—specifically as it relates to how the international community perceives the Court. It does so because it is states to whom the Court must turn to receive funding and other assistance. If that audience does not perceive the Court as legitimate, it will be less likely to continue to support it, which in turn means that the ICC will have little chance of delivering on its mandate of ending impunity for the most serious international crimes.
This Article suggests that if the ICC can carry out a successful investigation in Ukraine, leading to possible prosecutions, this could contribute to enhancing the Court’s perceived legitimacy with the international community. In other words, bringing Russian leaders to justice may position the Court as a key accountability mechanism and may thereby improve its members’ perception of the institution.
Keywords: international criminal court, legitimacy, funding
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