Legitimacy in War and Punishment: The Security Council and the ICC

When the ICC acts pursuant to Security Council authority, its dependence on the acquiescence of the United States, Russia, and China (call them the “non-party permanent members”) undermines its moral standing to condemn. Indeed, the ICC may be worse off in this respect than were the ad hoc tribunals and possibly even than were the post-World-War-II tribunals in Nuremberg and Tokyo. In contrast to those earlier tribunals, the ICC’s institutional permanence affords states the opportunity to affirm or reject its authority over their territories or nationals in a presumptively permanent way. The rejection of that authority by the non-party permanent members is uniquely harmful to the Court’s standing to condemn in Council-referred cases. As such, when it acts pursuant to Council referrals, the ICC acts with clear legal authority, but little moral legitimacy. If that thesis is right, it flips on its head the reverse divergence invoked so frequently since NATO’s 1999 military action in Kosovo, whereby unauthorized humanitarian interventions have been described as “illegal but [morally] legitimate.” Indeed, the thesis advanced here might seem to be in deep tension with a closely related post-Kosovo development — the notion that the Security Council has a responsibility to authorize the use of force to stop atrocity, and that the Council loses legitimacy when it fails to do so, even though such inaction falls clearly within the bounds of its legal discretion. Is the view that there is a legitimacy imperative for the Security Council to authorize force in response to atrocity compatible with the view that there is a legitimacy imperative against the Council’s referral of precisely such situations to the ICC? The reason to respond affirmatively is that the different roles of force and punishment in international law implicate different normative stakes, and thus distinct standards of legitimacy. International criminal punishment is about expressive condemnation; the use of force is about preventing certain kinds of wrongful harm. Standing is essential to an institution’s moral capacity to issue condemnation, including in the form of criminal punishment. When that is the institution's core function, diminished standing entails diminished legitimacy. However, in the context of wrong prevention through force, standing plays a weaker role. If this is right, the ICC’s legitimacy could be enhanced in one of two ways. If it were endowed with universal jurisdiction regarding international crimes, it could claim credibly to stand as an impartial supranational authority channeling universal values in a way that it cannot currently. Alternatively, if it were endowed exclusively with territorial and nationality jurisdiction, it could claim credibly to express the values of the community of States Parties in contexts in which their values are implicated and their authority to determine normative boundaries is unambiguous. Of the two, the universal posture may better match the aspirations of international criminal justice. However, such a change to the structure of ICC jurisdiction is difficult to imagine in the short run. In the meantime, the Court’s legitimacy would benefit from a de facto move to the other alternative, whether through the Council refraining from ICC referrals, or the Prosecutor declining to pursue such referrals “in the interests of justice.”