Globalizing Justice: Critical Perspectives on Transnational Law and the Cross-Border Migration of Legal Norms

4. Legitimacy and the Exercise of Universal Criminal Jurisdiction

CHAPTER FOUR Legitimacy and the Exercise of Universal Criminal Jurisdiction DONALD W. JACKSON In the era of globalization, mostly characterized by the fact that time and space are collapsed through instant communications, by rapid transportation, and the massive and relatively free flow of people, goods, and money across state boundaries, the concept of absolute sovereignty no longer exists. Jackson Nayamuya Maogoto1 This chapter focuses on issues concerning the legitimacy of criminal prosecutions under international law (war crimes, crimes against humanity, genocide, and other offenses) and on the practical problems that so far have been encountered, especially in key prosecutions before the ad hoc tribunals for Yugoslavia and Rwanda. CONCEPTUALIZING LEGITIMACY David Beetham’s reformulation of the traditional approach to studying legitimacy argues that instead of simply assessing public opinion regarding the legitimacy of authority, we should ask whether that authority conforms to the values and standards of a society—whether it satisfies “the normative expectations they have of it.” Thus, he says, “We are making an assessment 67 68 GLOBALIZING JUSTICE of the degree of congruence, or lack of it, between a given system of power and the beliefs, values and expectations that provide its justification.”2 In other words, we can study the beliefs and values that people have and from those we can assess their congruence with a system, rather than assessing individuals’ diffuse system support directly as an indication of legitimacy. In Beetham’s formulation, power is legitimate when: 1. It conforms to established rules. 2. The rules can be justified by reference to beliefs shared by both dominant and subordinate interests. 3. There is evidence of consent by the subordinate to the particular power relation. Evaluation of these three criteria can be made, in his view, by examining evidence in the public domain, though not solely (and perhaps not primarily ) by public opinion (the proper evidence is “not in the private recesses of people’s minds”).3 Indeed, this approach offers an alternative methodology for answering questions about legitimacy.The first question—whether the use of power conforms to established rules—may be one chiefly for lawyers and judges, but certainly social scientists have a contribution to make as well.The second question—the congruity between rules and beliefs shared by both dominant and subordinate interests—can be answered both by philosophers and social scientists and by survey research, but Beetham suggests that the question of legitimacy ought not be answered by mass public opinion alone. The third question—that of expressed consent—is more complicated. Clearly some sort of democratic or democratic/representative accountability is suggested, but the form is indeterminate. Beetham does argue that today it must be mass consent, given that popular consent is a contemporary democratic standard, perhaps only sometimes achieved, but aspired to by most people.4 Beetham concludes,“The legitimacy or rightfulness of power,then,provides an explanation for obedience through the obligation it imposes on people to obey, and through the grounds or reasons it gives for their obedience.”5 The key difficulty with the legitimacy of prosecutions under universal criminal jurisdiction is that the traditional units of analysis in international law have been sovereign states. In international law, a sovereign state is a unit or collectivity that claims the exclusive right to the legitimate use of physical force within a society,6 and international law ordinarily recognizes the exclusive territorial rights and political independence of those units.Yet prosecutions under universal criminal jurisdiction represent a form of humanitarian intervention that is held to be justifiable when a sovereign state fails to fulfill the duty owed by a state to its citizens or subjects. This perspective on duty is becoming commonplace in international circles7 —governments today are 69 UNIVERSAL CRIMINAL JURISDICTION viewed as having a duty to protect their citizens against serious abuses of their rights. These duties may be those contained within international covenants or they may be transmitted within the provisions of customary international law that have developed incrementally, chiefly during the past two centuries. These include war crimes, crimes against humanity, and genocide and are part of the peremptory norms of international law (jus cogens).8 The key issue with the legitimacy of such prosecutions is that they run counter to the claims of those who continue to assert the prerogatives of unrestricted sovereignty. Max Weber’s formulation of legitimacy provides an essential background for Beetham...