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110 of 995 DOCUMENTS

© Oxford University Press 2006

Journal of International Criminal Justice

1 September 2006

ICJ 4 4 (765)

LENGTH: 8846 words

TOPIC: CRIMINAL LAW

TITLE: Democratic Legitimacy and the International Criminal Court

A Liberal Defence

AUTHOR: Assistant Professor, Department of Sociology and Criminal Justice,


University of Delaware. [afichte@Udel.Edu]
Aaron Fichtelberg

SUMMARY:

Abstract In response to the criticism that the International Criminal Court is undemocratic, this article outlines a
liberal conception of institutional legitimacy and defends its appropriateness as a moral foundation for the International
Criminal Court. In contrast to a communitarian concept of democracy (which sees democracy as an expression of the
general will), liberals see political legitimacy as stemming from a respect for fundamental human rights. Thus, as long as
the International Criminal Court respects the right of the accused to a fair trial, then it is a legitimate institution.

LEGISLATION REFERRED TO:

Rome Treaty; European Convention for the Protection of Human Rights

TEXT:

1. Introduction

The American attitude towards the international community has been, throughout much of recent history, surprisingly
hostile. Whether dealing with the United Nations, the International Court of Justice (ICJ) or the scrutiny of international
non-governmental organizations (NGOs), the United States has consistently been opposed to answering to international
political, legal or moral bodies. This defiance is not particular to one political party or ideology: resistance to the influence
of international institutions is a bipartisan phenomenon. It is only slightly less strident among Democrats. n1 This is
ironic, given that the United States has played a central role in the construction of many of these same bodies, blazing
trails in the formation of international institutions and the development of international law, frequently doing so over the
objections of many prominent American allies. To cite only a few prominent examples, the US government was
instrumental in the construction of the United Nations, the International Military Tribunal in Nuremberg (IMT), the World

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Trade Organization (WTO) and the two ad hoc International Criminal Tribunals for the former Yugoslavia (ICTY) and for
Rwanda (ICTR). n2 Additionally, there has always been a Wilsonian strain in US foreign policy, considering US
democratic values and legal principles to be suitable for export. n3 This ideological vacillation between cosmopolitan
idealism and unilateral realpolitik has led many sceptics to claim that the United States is all for international justice and
international law, provided that these rules apply only to others, and not to the United States or to Americans. Thus, there
has been a constant conflict between the United States and the proponents of international society, reaching a shrillness
that is at times deafening.

This struggle currently under way between the US government and supporters of international law and international
institutions has taken on numerous fronts. This paper will deal with only one of these - an issue that has sat on the back
burner of much of the recent debate about US foreign relations. However, despite its unobtrusiveness, it is one that is very
important for the future of US foreign policy and the overall trajectory of international society, and foreign affairs scholars
overlook it at their peril. In particular, I am interested in the bitter antagonism between the United States and its
international allies in relation to the International Criminal Court (ICC).

American resistance to the ICC has taken on numerous political, legal and diplomatic forms, culminating in the Bush
administration's withdrawing the United States' signature from the Rome Treaty (which founded the Court) and the August
2002 signing of the American Servicemen's Protection Act (ASPA), authorizing the President to use force to extract
Americans held by the Court. n4 The roots of this animus are deep: some of these roots are political, some historical, but,
most importantly, these roots are philosophical. To its critics, the ICC represents a threat to the intellectual core of US
society.

I propose to address one of these philosophical criticisms of the ICC. Specifically, I want to address the concern that
the ICC is undemocratic and that because of this, the Court does not merit US support. This criticism (raised by prominent
international law scholars such as Madeline Morris n5 ) points to the fact that such courts do not answer to democratic
bodies in a manner akin to their domestic counterparts. Because of this 'democratic deficit', the ICC is not a legitimate
judicial body and should be shunned by all states that support democratic principles. This is one of the strongest
philosophical arguments presented against the ICC (leaving aside the practical, political ones, and arguments rooted in US
constitutional law) and thus it behoves supporters of the ICC to address it.

Exploring and criticizing this objection will not only undermine one prominent rationale for opposing the ICC, but
additionally will provide an opportunity for articulating and defending the proper philosophical basis for this Court and the
legal system it applies. Thus, the broader goal of this paper is to defend a liberal conception of international criminal law.

The term 'liberal' as used here does not correspond to the various camps of contemporary US political debate (liberal
values are in some sense compatible with both 'conservatives' and 'liberals' in the current popular idiom). Rather, the term
liberalism represents a political philosophy that emphasizes the rights held by individuals vis-a-vis the state. For liberals,
the democratic deliberation of a group regarding how they choose to live their lives is restrained by the rights of the
individuals that comprise the state (and, by extension, to those outside the state). Rights have a normative legitimacy that
both precedes democracy and overrides the outcome of democratic deliberation. Thus, I will argue, being undemocratic is
not as devastating a problem as one would imagine, at least when compared with other concerns. A court that is
democratic but which violates the rights of individuals is significantly worse than an undemocratic court which respects
individual rights. In fact, I will argue that it is because of the dangers inherent in the deification of democracy as a
principle of government that institutions such as the ICC are absolutely necessary. Thus, the guiding questions should not
be 'Is the ICC undemocratic?', but rather 'Is it unfair?' and 'Does the court respect individual rights?'. It is ultimately
respect for the values of a liberal, rights-based conception of law that will give the ICC its legitimacy and not the nature of
the formal institutional structures.

My approach will have three parts. First, I will discuss Professor Morris' critique of the Court, namely her assertion
that the Court is illegitimate because it is undemocratic. This will lead, in turn, to a discussion about the philosophical
nature of institutional in general and democratic legitimacy in particular. Following this, I will then defend a liberal
approach to the criminal courts - an approach that I believe coheres both with our intuitions about the nature of legitimacy
on one hand, and the moral basis for criminal prosecutions on the other. Then, in the final section, I will look at the

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jurisprudence of international criminal law where the ICTY, faced with questions regarding its own legitimacy, justified its
existence by appeal to much the same liberal model that I will set out here.

2. Morris' Critique

Much of the world community saw the Rome Treaty as the beginning of a new era in international relations - an era
in which (as one conference on the ICC put it) the 'culture of impunity' was being replaced by a 'culture of accountability'.
n6 The vast majority of states, international NGOs, academics and human rights activists have lauded the Court as an
important step towards robbing powerful criminals of the impunity that their power provides and beginning a new era of
accountability.

While there are many notable exceptions to this generally optimistic tone, the most surprising and the most virulent
resistance comes from the United States, which has greeted the Court with an almost unmitigated distain. Along with the
aforementioned ASPA and the 'unsigning' of the Rome Treaty, the US government has worked on numerous diplomatic
and legal fronts to undermine the Court and, to keep their citizens out of the reach of the Court, has gone to lengths that
could be charitably described as neurotic. n7 The resistance to the ICC is not simply from the usual 'UN black helicopter'
crowd; nor is it an extremist political position in Washington, DC. Rather, US resistance to the ICC is strong, politically
powerful and mainstream.

Amidst the cacophony of US voices opposed to the ICC, some insightful philosophical criticisms of the Court have
been expressed. Madeline Morris of Duke University School of Law has been one of the most thoughtful critics of the
ICC, publishing numerous articles in academic journals and newspapers questioning the Court and the wisdom of US
participation in it. Unlike other critics, she writes not out of an ideology of US exceptionalism, nor from a cynical distrust
of international institutions. Rather, she writes out of a genuine interest in international justice, having served as a legal
advisor both to the US government and to the President of Rwanda. More precisely, Morris' critique of the ICC is unique
in that it is both normative and philosophical in character. She is not so much concerned with the practical, political
implications of the ICC (although these concerns are not entirely irrelevant to her analysis), nor with its relationship to the
US constitution; rather, she is concerned with the legitimacy of the institution itself. Her argument is couched in a moral
discourse, not in the strategic or political language or Realpolitik. Her complaint is not that the Court is impractical or
dangerous to US interests, but rather it is illegitimate.

According to Morris, the central flaw of the Court is that its legal and institutional structures are not democratic.
Particularly in its (possible) jurisdiction over non-nationals, but more broadly in some of its bureaucratic structures, the
Court does not answer to any democratic political body. As an independent, self-standing international political body
(distinct from the United Nations) which has its own Assembly of States Parties and its own legal personality, the Court
will be empowered to carry out prosecutions that are in opposition to the democratic will of certain states. n8 According
to Morris, this means that in many cases, the Court will decide the fate of some individuals without being forced to answer
to the people who are responsible for the well-being of the accused. Thus, given that all of the relevant human rights texts
assert that there is a human right to democratic governance, the Rome Treaty, despite its undeniably noble intentions,
violates human rights and thus is illegitimate. n9

In most cases, Morris concedes that in so far as most states delegate their sovereignty to the ICC by signing the
Rome Treaty, the jurisdiction of the ICC is completely compatible with the principles of democratic governance. All
treaties are constraints on the sovereignty of a state - democratic or otherwise. The crux of the problem arises, however,
when citizens of democratic states that are not a party to the ICC are placed under its jurisdiction. A national of a state
such as the United States, who commits a war crime within the borders of a state that has placed itself under the
jurisdiction of the Court, may find herself answering to a judicial body whose existence she did not consent to. n10 This,
Morris argues, undermines the legitimacy of the trial by denying the accused the right to be having her life governed by
democratic institutions: 'What is the democratic basis for the ICC's power as applied to populations whose states have not
consented on their behalf? Here the ICC's claim to democratic legitimacy breaks down.' n11 There is no democratic
linkage between the ICC and those non-party nationals over whom it would exercise authority. Thus, on Morris's account,
the ICC's claim to represent the international community and respect human rights (and the right to democracy) falls
apart:

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What is ultimately at stake, beneath the heated controversy concerning ICC jurisdiction over non-party nationals, is a
tension embodied in the Rome Treaty between the human rights embodied in humanitarian law (rights to freedom from
genocide, war crimes, and crimes against humanity) and the human right to democratic governance. n12

The Court is illegitimate in these cases because it cannot trace its jurisdiction over non-nationals back to a political
process that the accused herself took part in. n13

According to Morris, this problem of a 'democratic deficit' is compounded by other non-democratic aspects of the
Court's bureaucratic organization. According to the Rome Treaty, the ICC has the right to revise its jurisdiction and
expand into areas not explicitly endorsed by the Rome Treaty. For example, Morris points out that the Rome Conference
recommended expanding its jurisdiction ratione materiae to 'consider the crimes of terrorism and drug crimes'. n14 The
crime of 'aggression' was left undefined in the Statute, its definition reserved for a later date. n15 This, the most
controversial and arguably the most heinous war crime, n16 will be defined by a process in which the individuals who
could answer for the crime have no say. Further, the Assembly of States Parties for the ICC - the organization that
oversees many aspects of the Court's proceedings - will be run on a majority or supermajority vote. This could mean that
serious legal matters, including the expansion of the subjects that the Court deems to be prosecutable, could take place
without the unanimous consent of states that are part of the treaty (not to mention the consent of non-party states). Hence,
democratic nations that are party to the Court will find their citizens liable for crimes to which the states themselves could
have objected.

Further, and somewhat more significantly, the Court's rulings will not be the mere mechanical application of a set of
rules to a set of facts. Rather, the Court will be authorized to rule on cases that raise issues of a profound political
importance. This is simply because the distinction between legal rulings and the formation of political policy is a thin one
at best and that nearly all legal rulings, regardless of how legally 'tidy' they might be, will have political consequences.
The Court will be required at times to rule on the nature of political behaviour that will affect the ability of states and their
nationals to freely conduct both military and peacetime policy. After a survey of issues that the Court may (possibly)
confront in the future, Morris concludes that 'These are not thin questions. Each involves areas where the law is
indeterminate and the politics are weighty. These questions do not require anything like the 'mere' 'application of laws to
the facts.' These issues implicate the enormous political, and even moral issues and controversies'. n17 Whether the Court
treads lightly or heavily, its decisions will unavoidably impact the conduct of foreign policy. Political leaders will be less
free to protect their citizens and to advance their national interests on account of ICC rulings regarding the legality of
certain policies. While such problematic rulings may be uncomfortable for nationals from states that are parties to the
Rome Treaty, for those non-party nationals who haplessly fall under the Court's jurisdiction, such rulings are
undemocratic, and thus inherently illegitimate.

Morris detects a double standard underlying the enthusiasm for the ICC held by many international lawyers and other
internationally minded scholars. For Morris, the undemocratic character of the ICC is analogous to the common
complaints made regarding the weaknesses of the WTO, the World Bank and the International Monetary Fund (IMF). One
common objection voiced to these organizations by both academic and grassroots organizations is that they are
empowered to make decisions that profoundly affect the well-being of large numbers of people without their consent. If
Morris's analysis is correct, then the ICC suffers from the exact same problem, but it has met with few objections from
these same anti-globalization forces. 'Why, then have we hear no clamor - indeed, no discussion - of democratic legitimacy
in relation to the ICC? Why has there been virtually no discussion of democracy relative to the ICC, even while the
'democratic deficit' of other institutions, like the WTO, has been a cause celebre?' n18

3. The Concept of Democratic Legitimacy

Morris' critique of the democratic legitimacy of the ICC is at once both philosophically powerful and very American.
American political society has always been suspicious of judicial power, and it is a common complaint that judges,
particularly those appointed for life terms, are empowered to wield power against the interests of the many. In current
political parlance, this suspicion takes many forms. Politicians rant about 'judicial activism', scholars warn of a
'government by judiciary', and judges are constantly admonished to 'apply law, not create it' by pundits on radio, television
and in print. The relation between judicial institutions, imagined as a clique of powerful, educated elites, and the US belief

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in democracy has always been an uneasy one for the popular mind. Such individuals wield power and issue decrees on
highly controversial social, cultural and political issues from outside the realm of public accountability. Because of their
position, these individuals possess a de facto legislative power. Placed beyond the reach of the body politic, judges are
given the ability to determine the fate of the people themselves without being required to answer to them. This perceived
threat of rogue judges has been used by both the left and the right to attack the role of the judiciary in US politics and to
create a climate of distrust of the judicial profession (and the legal profession more generally). n19

This traditional tension in US political thought is significantly magnified when we step beyond the bounds of the
nation state and into the realm of international courts. Here, judges in the ICJ, the ad hoc Tribunals and the ICC are
empowered to render verdicts without any political accountability to the states that are affected by them. International
courts are even further removed from local democratic processes than are their domestic counterparts. Judges on these
courts rarely come from the nations and groups who bring grievances before them. Thus, at the ICJ, a Swedish judge may
be on a judicial panel ruling on a dispute between Argentina and Kenya while having no political accountability to the
people of either nation. The ruling will consequently limit the choices of the people themselves as well as their
self-determination. Accused criminals brought before the ICC may be wildly popular at home and their acts considered
legal and justified in the minds of their compatriots. Further, the judge will not be forced to endure the consequences of
her decision, as these usually only impact upon the two states involved. Hence, international courts (criminal or otherwise)
stand on a political precipice; they are charged with handling the most politically sensitive and contentious cases,
frequently with enormous gravity, far removed from any adverse consequences of their decisions.

The idea that the ICC is 'undemocratic' has a certain amount of appeal, of course. In modern political discourse,
'democracy' is almost universally understood to be an inherently good thing and the term 'democratic legitimacy' is taken
to be more or less redundant. However, the idea that the Court's jurisdiction must be democratic in character overlooks
some important characteristics of international society and, in particular, ignores the original impetus for the ICC itself.

Democratic legitimacy is not as simple a concept as it may appear at first glance. In order to illustrate this, we can
distinguish broadly between two different models of democracy: civic republicanism on one hand, and liberal democracy
on the other. n20 For civic republicans, democracy is a practice whereby we as humans come to a collective
understanding of the good life - what Habermas, following Hegel, refers to as 'substantial ethical life'. n21 Thus, for
republicans, democracy is a means of establishing a collective identity: a way for groups to exercise their popular
sovereignty and mediate their collective self-understanding. On the other hand, for liberals, democracy is sharply limited.
In particular, it is limited by the rights of individuals that serve to delineate a point past which the power of the state may
not go. For liberals, democracy is valuable for pragmatic reasons: it is the form of political organization where individual
rights are least likely to be infringed, and collective goods are most likely to be distributed fairly. Again, to cite Habermas:
'According to the 'liberal' view ... the democratic process carries out the task of programming the government in the
interests of society, where the government is represented as an apparatus of public administration, society as a system of
market and labor relations among private persons.' n22 For republicans, the state plays the role of articulating a shared
moral sense - a shared sense of human values; for liberals, the state is first and foremost a means of social organization,
and issues of the good life are relegated exclusively to the private sphere.

Of course, each of these conceptions of democracy has its own philosophical pedigree. Republicanism finds its best
advocate in Jean-Jacques Rousseau and his Contrat Social. n23 On the other hand, the father of the liberal model of
democracy is John Locke. n24

For our concerns, the central difference between the civic republican model and the liberal model is the relation
between the state and the individual rights-bearers that comprise it. For Rousseau, it is clear that the individual sacrifices
her private self for the common good. The general will has priority over the individuals who comprise it; it is 'the total
alienation of each associate, together with all his rights, to the whole community'. n25 On the other hand, for Locke, the
normative status of the individual rights bearer is superior to the authority of the state itself. The state may encroach on
these rights, but the legislature is 'a Power, that hath no other end but preservation, and therefore can never have a right to
destroy, enslave, or designedly to impoverish the Subjects'. n26 For Rousseau's republicanism, democracy is superior to
individual liberty, whereas for Lockean liberalism, individual rights trump the outcome of democratic deliberation.

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On the republican model of legitimacy, it would be important for juridical bodies to answer to the people because
these institutions (as organs of the state) exist in order to represent the collective will of the people - their ethical life. The
job of the courts is to assist in discussion and to articulate this will in terms of law and policies. If the government's
apparatuses are disconnected from the general will, then there is good reason to believe that their decisions are
illegitimate. The power to legislate, whether carried out by legislators or indirectly by judges, is inherently illegitimate
when these laws are divorced from the process of democratic deliberation. Such an approach seems close to what concerns
Morris in relation to the ICC. In cases in which the Court prosecutes non-party nationals, the Court lacks legitimacy
precisely for the same reason that an undemocratic domestic legal institution lacks legitimacy: they do not reflect the will
of the people. Democracy is a necessary and sufficient condition for institutional legitimacy.

On the liberal view, however, this is not the case. Political institutions such as courts do not represent the people per
se, but instead are charged with adjudicating conflicts between rights-bearing individuals and protecting these rights from
a state wishing to overstep its bounds. The courts are not there to represent a democratic people but to protect people from
an excess of democracy. There is no necessary requirement that a political institution is institutionally democratic in order
to be legitimate; it must simply protect the rights of citizens in a normatively appropriate fashion. n27 Provided that
judges are ruling fairly and respecting the rights of citizens, the court itself is legitimate. The criteria for a legitimate trial
is that it is conducted in a fair way - fair in the sense that it respects the rights of the individuals, providing them with due
process and the opportunity to mount a robust defence.

Democracy is important for very practical reasons in the liberal model. Because the majority of citizens participate in
the political process, democratic systems have numerous advantages over other forms of government. For example,
democracies are better suited to make policy decisions that are in the interest of everyone. Likewise, they are more likely
to respond to problems that a non-democratic regime would either fail to understand or fail to adequately prepare for. n28
Finally, democratic institutions, in most cases, are more likely to defend individual rights than an authoritarian regime, as
power is dispersed among a group of people with constitutionally defined powers. Nobody is sufficiently powerful to
seriously threaten the rights of others. Thus, there is good reason to believe that a constitutional democracy would
probably be the best form of government for the vast majority of liberals. However, democracy is not good in and of itself,
and it is not the royal road to establishing the legitimacy of an institution. The link between democracy and legitimacy is
an empirical one - not an a priori one for liberals. Rather, the value of democracy is purely instrumental - the right to
democracy is there in order to protect other, more essential rights. True political legitimacy comes solely out of the respect
for basic individual human rights, but democracy is often the best way to assure that these rights are respected. Thus,
'democratic legitimacy' is a significantly weaker concept than in the republican tradition. Democracy is only a means to
another end: the protection of rights.

4. Republicanism and Criminal Justice

While both models of democratic legitimacy have aspects to them that are philosophically compelling (and, likewise,
each has problematic elements), when we turn to issues of criminal justice in general and international criminal justice in
particular, the weaknesses of the republican model become especially noticeable and troubling. The emphasis that the
republican model lays on the benefits of consensus formation and the democratic process is unnecessary and irrelevant
when we look to normative standards for criminal trials. Here, other values must take precedence, in particular the liberal
value of procedural fairness. Hence, the right to a fair trial is far more important than the right to democratic governance
(or even in many cases, the laudable goals of enhancing human security). First, I will argue that leaders who were
democratically legitimate could commit many of the crimes that would fall under the jurisdiction of the ICC. This means
that on the republican model, democratic legitimacy in the republican sense is compatible with massive atrocities.
Secondly, I will argue, democratic bodies are less likely to provide fair trials for accused criminals. Finally, I will argue
that it is very difficult to make sense of the idea of democratic governance for crimes committed overseas. A liberal
approach to legitimacy does not have such problems. Thus, in cases in which democracy conflicts with the right to a fair
trial, the latter must take precedence.

The central problem with the republican model for determining the legitimacy of the ICC is that it fails to provide a
robust enough role for the unique principles that are central to criminal proceedings, subordinating these ideals to the will
of the majority. While it is true that the deliberations of a republican democracy are unrestrained in their subject matter,

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their power over the individuals in the state is likewise unconstrained. The demos may choose to do whatever they wish to
their citizens, provided that their ultimate decision is the result of a democratic process. This means that human rights
protections (such as the right to a fair trial) will be subordinate to the will of the whole - a possibility with horrible
consequences in parts of the world, particularly those where many of the crimes that fall under the jurisdiction of the ICC
occur. The tyranny of the majority - a mere hypothetical problem for those who live in the largely secure western liberal
democracies - is a very real problem when we turn to the world in which institutions like the ICC are most needed.

The republican model assumes that the unfettered democratic will would inevitably be correct in its conclusions. For
Rousseau, it is an article of faith that a truly general will would extract itself from the particular interests of each of its
citizens and pursue the common good. However, this has a sinister side in so far as the will of the individual is completely
subordinate to this general will. n29 The individual's interests and concerns, the protection of which are the entire raison
d'etre of the state for liberals, are to be discarded when the majority so chooses.

If the primary criterion for an institution's legitimacy is that it represents the will of the majority, then there is no
reason to think that a vast number of individuals that have committed crimes did not do so 'democratically' and, hence,
legitimately. Many states that have committed horrible crimes were 'democratic' in the republican sense - they reflected the
will of the majority. The 'Hutu Power' movement in Rwanda was popular with average Hutus up until the point at which
their atrocities were forcibly halted, to cite only one example. Frequently, crimes against humanity consist in the
oppression of a minority by a majority, which, formally at least, is 'democratic' in nature.

Even if the republican views regarding the democratic foundations of institutional legitimacy were correct, it is
difficult to see how this principle relates to criminal law and criminal courts. Frequently, the will of the majority may find
an entirely innocent person guilty of a crime, having tried them in 'the court of public opinion'. Popular opinion may
likewise exonerate a clearly guilty person. Among the participants of the US massacre at My Lai village, Lieutenant
William Calley was the only individual found guilty of any criminal activity. For the massacre of 22 civilians, Calley spent
a mere three days in prison before President Nixon, in response to public opinion, placed him under house arrest (he was
paroled three years later). n30 The opinion of the majority is often a corrupting influence on the legitimacy of criminal
trials; hence, in the United States, at times, juries are sequestered in high-profile criminal prosecutions. A democratic
public's conclusion regarding the guilt or innocence of a criminal is not only unlikely to be correct, but, additionally, there
is no reason to believe that the view of the public is relevant to the guilt or innocence of the accused. There are too many
technical factors which are only available to the diligent legal or forensic expert - too many facts to weigh and balance in
determining the guilt or innocence of the accused (much fewer facts which might mitigate punishment) for democracy to
be a concern in criminal trials. Popular opinion is not likely to be a good measure of guilt or innocence, much less a guide
to establishing mitigating or aggravating factors.

Criminal law is different from other legal domains, particularly when seen through the lens of liberal theory. In
international courts, values other than purely democratic ones are essential to establishing the legitimacy of a trial. What is
most important is that such trials are fair in a meaningful sense of the word. Fair trials in a liberal sense depend on a
respect for human rights to procedural and substantive due process and the right of the accused to decent treatment. The
individual must be given the proper tools to defend herself from a particular charge and, if found guilty, to protect herself
from an inappropriate degree of punishment. Likewise, the law must be evenly applied and not used as a vehicle for
political retribution. Fair criminal trials do not entail that the demos be given the authority to choose who is prosecuted for
what, and who is granted immunity for their crimes. The right to democratic governance is not violated when an individual
is condemned or exonerated against the will of democratic majority, provided that the individual's basic rights have been
preserved and the trial was fair. The 'elitism' decried by those who are sceptical about judicial authority over democratic
societies can be important and useful for criminal cases, as such liberal elites can ensure that due process is provided for
the accused against the will of the majority. In this context, elites protect the rights of the minority against the will of the
majority. Thus, the normative legitimacy of a criminal trial is logically distinct from its relationship to a democratic
institution because of its unique tasks (punishing the guilty and exonerating the innocent).

Again, when we examine the legitimacy of an international criminal court, the criterion that it be democratic becomes
even more problematic. The central rationale for the ICC is that it provides some form of accountability for individuals
who are able to avoid accountability in their homelands. One of the primary reasons why these criminals will be able to

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evade domestic courts is that the (democratic) opinion of the citizens of the accused criminal's home state may be opposed
to a trial. This is very common: war criminals frequently style themselves to be genuine patriots, and by many accounts,
they are. Slobodan Milo evic never ceased to be popular among a large amount of the Serbian population during the
Bosnia and Kosovo crises and his political party has been very successful in subsequent parliamentary elections. n31
Thus, the ICC was designed to bring justice to those who are immune to prosecution under their domestic criminal justice
systems for democratic or undemocratic reasons. The ICC is empowered to step in precisely where an excess of
democracy has interfered with the demands of justice and the domestic courts are 'unwilling or unable genuinely to carry
out the investigation or prosecution' (Article 17(1)(a) of the ICC Statute). n32

The Rome Statute provides a number of the procedural safeguards valued by Locke and it bears striking resemblance
to the protections found in the American Constitution. Accused international criminals have a right to the assistance of
counsel, n33 the right to examine witnesses, n34 the right to a speedy trial n35 and the right to avoid self-incrimination.
n36 Further, the accused is presumed innocent n37 and it is the burden of the prosecution to prove the accused's
innocence 'beyond a reasonable doubt'. n38 The accused even has the controversial 'Miranda right' to be informed of the
rights that she possesses. n39 Thus, while the Court differs in some substantial ways from traditional US criminal
proceedings (e.g. the ICC lacks a jury), on paper at least, the ICC meets the threshold of a fair trial by most liberal
standards, or at least by standards that the US critics of the ICC should accept. n40 Whether or not the ICC's standards
are the ideal standards that a liberal would accept, there is good reason to believe that US liberals would have few reasons
to complain about the structure of the ICC. Nonetheless, the point here is that the debate about whether or not the ICC is
legitimate hinges on the rights provided for the accused, and not its relation to democracy.

The same argument about procedure applies to the ICC's influence on substantive international criminal law.
According to Morris, the ICC will effectively created criminal law for states that are not party to the ICC, thereby tying
their hands in future matters. By ruling on the proper understanding of norms of international criminal law, the ICC will
influence future international criminal tribunals which could determine the fates of members of non-party states. Thus, the
argument goes, non-party democratic states will be subject to a legal code that they had no hand in creating.

However, as mentioned above, a liberal model of international criminal justice is not concerned with sources of law,
but rather with their substance. It is the obligation of criminal law to protect the rights of all by preventing one individual
or group from violating the rights of others or punishing those who do violate these rights. Whether or not these
mechanisms of rights protection are articulated through a democratic will or asserted through the legal opinions of
international judges is beside the point. It is the content of the legal system that matters. International law already
recognizes certain norms as jus cogens norms that no state, democratic or otherwise, could derogate from, let alone
abrogate, some of which have a clear criminal component to them. The normative validity of these jus cogens norms does
not stem from their origins in democratic processes, but rather originate with their ability to properly define the limits of
human freedom. For example, the jus cogens law against the commission of genocide obliges all states, whether or not
they choose to accept this norm. n41 Similarly, most common law legal systems recognize the important role played by
non-democratic judicial bodies in defending the fundamental rights of citizens against the will of the majority. In so far as
a legal code (international or otherwise) helps to protect the natural rights of individuals, then the code applied is a
legitimate one.

Morris's argument against the ICC amounts to a blunt conception of democracy - a bluntness that is particularly
problematic when contrasted with the political world in which the ICC must operate. As I suggested above, many of those
individuals that the ICC was designed to handle are in fact politically popular in their homeland, and the crimes that were
committed the product of a mass movement against a religious or ethnic minority. In the case of Rwanda, for example, the
Hutu Power movement was a broad-based movement to exterminate the Tutsi population. Similarly, the anti-Semitic
movement in Nazi Germany possessed the overwhelming support of the vast majority of German citizens, at least during
much of their reign. These movements were democratic in the most demagogical sense of the term. Mass movements with
wide popular support have frequently committed mass atrocities either against their own people or against others. To use
the terms set out by Joshua Cohen, they meet the demand 'that the authorization to exercise state power must arise from
the collective decisions of the members of a society who are governed by that power' if not the procedural requirement
that this will 'arises from the discussions and decisions of members, as made within and expressed through social and
political institutions designed to acknowledge their collective authority'. n42 Whether or not these movements meet the

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formal requirements of a modern, Western-style 'democracy', they certainly had the substance of a democracy - they
represented the will of the majority.

In her article, Morris fails to appreciate the priority given to individual rights in the international criminal law regime
in relation to democratic processes. It is true that we have a right to be free from the criminal activity that falls under the
jurisdiction of the ICC. It is also true that we have the right to democratic governance. However, we also possess the right
to a fair trial. It is the rights to a fair trial and due process that are of the utmost importance to the liberal, and these rights
trump the right to live among democratic institutions, at least when we focus on the context of international criminal
courts.

Of course, as a social theory of the international system, the dichotomy between civic republicanism and liberalism is
too simplistic. In most actual cases, democracy and a respect for individual rights have gone hand in hand. Modern
theorists such as Habermas, n43 Rawls n44 and Bobbio n45 have sought to reconcile these two poles of modern
political thought and linked a robust sense of democracy with a strong notion of individual rights. In practice, it is true that
democratic regimes are more likely to respect the human rights of its citizens. However, these claims are not essential to
understanding of the basis of the ICC's legitimacy, for two reasons.

First, the ICC is a criminal court - not a world government or a global constitutional court - and thus is only charged
with adjudicating a narrow sliver of issues regarding the guilt or innocence of an accused criminal (what Rousseau
referred to as 'a question of particular fact'). This means that the justification for the Court need only refer to the rights of a
few individuals, not the rights of all.

Secondly, the point I am making here is a moral claim about institutional legitimacy, not a social theoretic claim
about the social foundations of rights as such, or the empirical relationship between rights and democracy. It is clear that
the political constitution of the Court (its relation to the Security Council, for example) may adversely affect its
procedures, making the Court run in a manner that offends principles of justice. However, this empirical claim supports
the normative argument: the ICC in such a case would be illegitimate, not because of its political structures, but on
account of the impact of these structures on its procedures. There is no necessary moral connection between the political
structures of the Court and its legitimacy. More practically, as the Court has yet to prosecute anybody as of this writing,
any assertions about the factual fairness of the ICC's proceedings would be premature. The Court is still largely a
theoretical entity and my arguments can only be geared towards the normative legitimacy of the institution, not its political
reality.

If the arguments made so far are correct, the legitimacy of the ICC and similar institutions depends primarily upon
the fairness of its procedures. However, this conclusion requires a few caveats. As a moral principle, it is clear that fair
procedures are a necessary condition for a legitimate international criminal court. However, this may not be enough for the
ICC to be accepted by international society. As Franck has persuasively argued, 'To be effective, the system must be seen
to be effective. To be seen as effective, its decisions must be arrived at discursively in accordance with what is accepted by
the parties as right process.' n46 It is one thing to provide a fair trial; it is another thing for the trial to be recognized as a
fair trial. An international criminal court must struggle against tribalisms and parochial interests that will distrust any
effort to prosecute 'one of us', regardless of how fair the procedures in fact were. I should also note that the argument I am
making here is not about the philosophical legitimacy of liberalism per se, but rather the appropriateness of such a model
for understanding the normative basis of the ICC. If a fair trial is the essence of a legitimate trial, independent of the
political origins of the tribunal, then is it possible that a purely private court could hold legitimate criminal trials, provided
that they were conducted fairly? n47 The answer to this objection is a qualified 'yes'. In theory, a private form of criminal
justice could be carried out, provided that the trial applied the appropriate law and was conducted fairly. n48

5. Precedents and Future Cases

The history of international criminal law has borne up my thesis about the relation between individual rights and the
legitimacy of criminal prosecutions. In one of its first cases, Tadic, the Appeals Chamber of the ICTY dealt with this very
issue. In Tadic, the Chamber was charged (under the Kompetenz-Kompetenz principle) with determining the legality of
the Tribunal itself. The Defence Counsel had asserted that the UN Security Council - the organ that created the Tribunal -

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lacked the legal authority to create such a judicial body. Here, the defence argued that the trial was a violation of Article
14 of the International Covenant on Civil and Political Rights, as well as Article 6 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms. n49 The defence argued that the term 'established by law' could
only be interpreted as meaning 'established by a legislature'. n50 Since there is no international legislature (arguing that
the Security Council Resolutions that created the trial amounted to an 'executive order'), there cannot be a legal
international criminal tribunal created by a Security Council fiat and proceedings against the accused must cease.

The Appeals Chamber dismissed the defence's argument on three different grounds, evaluating three different
possible interpretations of this 'established by law' principle. However, it is only their third argument that is relevant for
my analysis. Looking at the history of international criminal tribunals, and specifically the Nuremberg and Tokyo
Tribunals, the Court asserted that despite some significant problems, they were legitimate institutions on liberal grounds.
Specifically, these Tribunals were legitimate, not because of the fact that they were established according to the principles
of international law (there is good reason to believe that they were not), but rather because the trials were procedurally fair.
n51 What makes a trial lawful on the Chamber's view is that its brand of justice accords with the ideal of human rights
and fairness, and not on account of its relation to a democratic body or otherwise legitimate political body. n52 This
influential opinion reflects the philosophical point made in the previous section that in criminal trials, the relationship
between the court and other political institutions is of second-order importance to the fairness of the trial's proceedings. If
the defence council in Tadic wished to show that the trial was illegitimate, they should have referred to the Court's
proceedings, not to the political foundation of its institutional structures. n53

Finally, there is a further consequence of this broadly liberal view for current issues in international justice.
Specifically, it has consequences for the military tribunals currently being used by the American government to try the
so-called 'unlawful combatants' currently held in Guantanamo Bay, Cuba. n54 While the constitutionality of these trials is
still under debate, there is good reason to believe that the trials are illegitimate, regardless of whether they are deemed
compatible with constitutional law or cohere with the will of the democratic majority. n55

6. Conclusions

The point of this paper has been to suggest that 'democratic legitimacy' does not mean what it has commonly been
construed to mean; nor, in the criminal justice arena, is it as important as it is sometimes taken to be. Democracy is merely
a form of social organization in which people collectively make decisions in order to achieve the common good. However,
as I have argued above, such a conception of government can also be one that is not incompatible with oppression,
suppression and atrocity, and it is a form of governance that is particularly ill-suited to criminal proceedings. What is
needed for a legitimate criminal justice system (either international or domestic) is something additional - an emphasis on
human rights that is a legacy of liberal political thought.

The project then for those Americans who are concerned about the normative legitimacy of the ICC should not be to
tie the Court more closely to democratic processes, much less to reject it outright. Rather, the point should be to seek to
articulate and to promote a tolerable standard of fairness in the Court's proceedings, i.e. to use US legal and political
experiences in order to explain what it is that makes a trial fair and what 'due process' consists in. Once an adequate
understanding of the liberal principles of legitimacy has been articulated and translated into a set of procedural norms,
these can be taken as an agenda for the construction, development and promotion of a fair trial system at the ICC. Thus,
the programme is not to link the Court more closely with actual democratic institutions, but rather to link it with a set of
liberal, democratic ideals and to ensure that these ideals influence the Court's practice.

Ultimately, the best way to assure that the trials are legitimate is for the United States to be a part of the Court. From
there, it may press for robust standards of due process. To the extent that the standards of international justice and US
justice coincide, there is no moral reason for Americans to oppose the Court.

Return to Text

FOOTNOTES:

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n1 J. Lauria, 'Kerry Opposes Role in Tribunal', Boston Globe (5 October 2004), A10.

n2 For an analysis of the role that America played in the development of the various international criminal tribunals, see G. Bass, Stay
the Hand of Vengeance (Princeton: Princeton University Press, 2000).

n3 D. Bederman, 'Globalization, International Law, and United States Foreign Policy', 50 Emory Law Journal (2001) 717-742.

n4 HR4775 Title II: ASPA.

n5 M. Morris, 'The Democratic Dilemma of the International Criminal Court', 5 Buffalo Criminal Law Review (2002) 591-600. See also
her editorial, 'Judgment without Democracy', Washington Post (24 July 2002), A19.

n6 As the President of Chile proudly declared before the United Nations, he and his nation saw its participation in the Court as part of its
responsibilities before the world community: 'Globalization carries with it responsibilities and Chile has assumed its responsibilities without
hesitation. As evidence of this, we have committed ourselves to disarmament policies; to United Nations peacekeeping forces; to the
International Criminal Court; to regional and universal instruments for the defence of human rights and democracy ... Chile has been and will
continue to be present on all the fronts of globalization', The Millennium Summit Of The United Nations Address By His Excellency Ricardo
Lagos, President Of The Republic Of Chile, New York, 6 September 2000, available online at http:/ /www.un.org/millennium/webcast
/statements/chile.htm (visited 22 October 2005). For a list of quotes from world leaders regarding the ICC, see http:/ /www.hrw.org/campaigns
/icc/docs/millenium_speeches.pdf (visited 22 October 2005).

n7 The United States presently has bilateral immunity agreements with 100 different countries and the ASPA explicitly forbids the
United States from offering military assistance to most of the countries that are parties to the ICC (which may be waived if the nations sign a
bilateral immunity agreement). See http:/ /www.state.gov/r/pa/prs/ps/2005/45573.htm (visited 22 October 2005).

n8 Article 1 ICCSt.

n9 For more on the controversial 'right to democratic governance', see T. Franck, 'The Emerging Right to Democratic Governance', 86
American Journal of International Law (1992) 46-91.

n10 I am ignoring the debate (again impressively developed by Morris in another article) as to whether the ICC may, under current
international law, assert jurisdiction over non-party nationals. See M. Morris, 'High Crimes and Misconceptions: The ICC and Non-Party
States', 64 Law and Contemporary Problems (2001) 13-66 and the response by M. Scharf, 'The ICC's Jurisdiction over the Nationals of
Non-party States: A Critique of the U.S. Position', ibid., at 67-118.

n11 Morris, The Democratic Dilemma, supra note 5, at 596.

n12 Ibid., at 593.

n13 This same point is echoed by the United States Ambassador-At-Large for War Crimes in his comments before the UN General

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Assembly, 'Statement by United States Ambassador-at-Large for War Crimes Issues David J. Scheffer Before the Sixth Committee of the 53rd
General Assembly 'The International Criminal Court' October 21, 1998', available online at http:/ /www.un.int/usa/98_179.htm (visited 22
October 2005). By extension, it would follow from this that nobody could be legitimately charged by a foreign nation (as the accused did not
participate in the government that is prosecuting her). Perhaps, Morris could respond that it is not the individual rights of citizens to take part in
the institutions that could try them, but that our states have a right to democratic participation in the institutions that could try their national.
This would be a strange right for states to have and its strangeness is compounded by the fact that most international institutions are not
democratic in any recognizable sense (such as the UN Security Council). However, despite this important flaw in Morris's argument, I will not
develop it further here, but would rather explore the concept of democratic legitimacy that she employs.

n14 Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court
Done at Rome, 17 July 1998.

n15 Cf. Arts 5(2), 121 and 123 ICCSt.

n16 As the Nuremberg Tribunal asserted, waging aggressive war is 'not only an international crime; [but] the supreme international crime
differing from other war crimes in that it contains within itself the accumulated evil of the whole', Judgment of 1 October 1946, International
Military Tribunal at Nuremberg, cited in L.N. Sadat, The International Criminal Court and the Transformation of International Law (Ardsley:
Transnational Publishers, 2002), at 133. As Kittichaisaree points out, 'Of all the crimes listed in Article 5 of the ICC Statute, the crime of
aggression is exceptional in many ways. It has no definition, no enumerated list of acts falling within that definition, and no indication of
constituent elements of the crime', K. Kittichaisaree, International Criminal Law (Oxford: Oxford University Press, 2001), at 206-207.

n17 Supra note 5, at 598.

n18 Ibid., at 496.

n19 '[N]othing can finally depreciate the central function that is assigned in democratic theory and practice to the electoral process; nor
can it be denied that the policy-making power of representative institutions, born of the electoral process, is the distinguishing characteristic of
the system. Judicial review works counter to this characteristic', A. Bickell, The Least Dangerous Branch (2nd edn, New Haven: Yale
University Press, 1986), at 16.

n20 It goes without saying that these terms do not relate to the use of 'republican' and 'liberal' in contemporary US politics.

n21 'On the republican view ... 'politics' is conceived as the reflexive form of substantial ethical life - as the medium in which the
members of more or less naturally emergent solidary communities become aware of their dependence on one another and, acting with full
deliberation, further shape and develop existing relations of reciprocal recognition into an association of free and equal citizens', J. Habermas,
Between Facts and Norms, trans. by W. Rehg (Cambridge: MIT University Press, 1996), at 269. See also G.W.F. Hegel, The Philosophy of
Right, trans. by H.B. Nisbet (Cambridge: Cambridge University Press, 1991).

n22 Habermas, supra note 20, at 269.

n23 According to Rousseau, individuals leave the pre-political state of nature to take part in the general will (volonte generale). In his
view, upon exiting the state of nature and joining the social contract all implicitly make the following vow: 'Each of us puts his person and all
his power in common under the supreme direction of the general will, and, in our corporate capacity we receive each member as an individual
part of the whole', J.J. Rousseau, The Social Contract and The Discourses, trans. by G.D.H. Cole (New York: Knopf, 1992), at 191. By joining
the social order, one has traded in one's natural freedom to do what one pleases for the civic freedoms of membership in a political, social and
cultural order, marking an epochal shift in the nature of human life. 'At once, in place of the individual personality of each contracting party, this
act of association creates a corporate and collective body. This public person, so formed by the union of all other persons, formerly took the
name of city, and now takes that of Republic or body politic', ibid., at 192. 'In quitting the state of nature, one joins a collective body where the

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individual's wants and desires, her will, becomes fused with the desires of all, 'as each gives himself absolutely'', ibid., at 191. 'It is only in such
a society, by partaking in the general will, that one can ultimately achieve one's full humanity', ibid., at 195. The state is the ultimate civilizer,
moulding the crude natural person into a complete individual who in turn becomes a part of the larger body politic.

n24 For Locke, the individual begins her political life in the state of nature, with a set of pre-political rights, in particular the rights to
life, liberty and property. The structural defects of the state of nature (namely a lack of explicit legislative, judicial and executive powers) make
the natural state unbearable and the yoke of political society preferable. For, 'though in a state of Nature he hath such a [freedom], yet the
Enjoyment of it is very uncertain, and constantly exposed to the Invasion of others', J. Locke, Two Treatises of Government (Cambridge: CUP,
1988), at 350. However, unlike Rousseau's model, for Locke, these rights are not completely abdicated when one assents to join the
commonwealth. Rather, she maintains these rights when she quits the state of nature and these rights ultimately limit the nature and scope of
legitimate political arrangements. In fact, according to Locke, the raison d'etre of the state is to preserve our natural rights and to make decisions
that are conducive to the common good, defining the limits of legitimate government. Thus, individual and natural rights exist within the state
of nature and are not abandoned upon joining the state, but the state is the means by which we assure that these rights are protected effectively.
The fact that the individual does not surrender her natural rights upon joining the commonwealth has some significant consequences for the role
of government in the liberal model. First, the government is not responsible for the moral or spiritual well-being of those in the commonwealth;
the government may not intrude on issues that are strictly 'personal' in nature. As Michael Sandel describes this dimension of the liberal view, 'A
just society seeks not to promote any particular ends, but enables its citizens to purse their own ends, consistent with a similar liberty for all; it
therefore must govern by principles that do not presuppose any particular conception of the good', M. Sandel, 'The Procedural Republic and the
Unencumbered Self', 12 Political Theory (1984) 81-96, at 82. Nor does political participation provide the individual with the highest form of
ethical life as in most versions of the republican model. Self-fulfilment is a pursuit that belongs strictly within the private sphere. All of these
ethical and spiritual interests may be pursued to their fullest extent within the individual's private life. Personal ethics and moral codes are not
subjects of political debate, but rather of personal reflection.

n25 Rousseau, supra note 22, at 191.

n26 Locke, supra note 23, at 357.

n27 As John Gray states, 'What, though, is the form of liberal limited government? It is clear that it need not be democratic government
... No system of government in which property rights and basic liberties are open to revision by temporary political majorities can be regarded
as satisfying liberal requirements. For this reason, an authoritarian type or government may sometimes do better from a liberal standpoint than a
democratic regime', J. Gray, Liberalism (Minneapolis: University of Minnesota Press, 1986), at 74.

n28 The economist, Amartya Sen, has done a great deal of work seeking to show that democratic societies with a free press and an
elected government are much better suited to prevent large-scale famine, A. Sen, Poverty and Famine: An Essay on Entitlement and
Deprivation (Oxford: OUP, 1981).

n29 As Rousseau himself states, 'the general will is always right and tends to the public advantage'. And thus, the individual has no right
to question the authority of the sovereign over her life. 'As nature gives each man absolute power over all his members, the social compact gives
the body politic absolute power over all its members also; and it is this power which, under the direction of the general will, bears, as I have
said, the name of Sovereignty', supra note 22, at 203-204.

n30 For a summary of the public opinion surveys surrounding the Calley case, see http:/ /www.law.umkc.edu/faculty/projects/ftrials
/mylai/SurveyResults.html (visited 22 October 2005).

n31 'Milosevic Wins Parliament Seat in Serbia Election', 19 December 2003, available online at http:/ /www.foxnews.com/story
/0,2933,106919,00.html (visited 22 October 2005).

n32 Rousseau himself was well aware of these limitations of the general will. While he thought that the general will was 'absolute,
sacred, and inviolable' (Rousseau, supra note 22, at 206), he acknowledged that on certain issues, the general will was subordinate to other
principles. These issues relate to what Rousseau calls 'particulars' - cases in which individual interests and facts are at issue, ibid., at 205. Thus,

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even for the arch-philosopher of republican democracy, certain matters are ill-suited for democratic fora, and should be limited to certain fields.
The democratic will is best equipped to rule on matters that affect all - the creation of laws, the determination of policies - and not on matters
that affect a few or a single individual, such as in criminal law. While this is still a stronger conception of democracy than the one found in
Locke (for whom positive law is always subordinate to natural rights), it nonetheless suggests that criminal justice is not a province of
democracy in the same fashion as other laws.

n33 Article 67(1)(b) ICCSt.

n34 Article 67(e) ICCSt.

n35 Article 67(1)(c) ICCSt.

n36 Article 55(1)(a) ICCSt.

n37 Article 66(1) and 66(2) ICCSt.

n38 Article 66(3) ICCSt.

n39 Article 55(2) ICCSt.

n40 For more on this, see R. Wedgewood, 'The Constitution and the ICC', in S. Sewall and C. Kaysen (eds), The United States and the
International Criminal Court (Lanham: Rowman and Littlefield, 2000) 118-131. For an interesting study on the value of juries in international
courts, see A. Powell, 'Three Angry Men: Juries in International Criminal Adjudication', 2 The New York University Law Review (2004)
2341-2380.

n41 R.Y. Jennings and A. Watts (eds), Oppenheim's International Law (9th edn, New York: Longman, 1996), at 7-8.

n42 J. Cohen, 'Procedure and Substance in Deliberative Democracy', in T. Christian (ed.), Philosophy and Democracy: An Anthology
(Oxford: OUP, 2003) 17-38, at 17.

n43 J. Habermas, Faktizitat und Geltung (Frankfurt am Main: Suhrkamp Verlag, 1992).

n44 J. Rawls, Political Liberalism (New York: Columbia University Press, 1993).

n45 N. Bobbio and M. Veroli, The Idea of the Republic, trans. by A. Cameron (Malden: Blackwell Press, 2003).

n46 T. Franck, Fairness in International Law and Institutions (Oxford: OUP, 1995), at 7.

n47 I would like to thank one of the anonymous reviewers of an earlier draft of this paper for raising this objection.

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n48 The reason why one instinctively bristles at the notion of a private criminal tribunal is not because this would be an inherently unjust
form of criminal justice, but rather because there are very good reasons to believe that such trials would inevitably be unfair - that they would
always be biased in favour of one group or another. Further, given the complicated logistics involved in conducting a fair trial (including
collecting witnesses, gathering and presenting evidence, and carrying out an effective and humane punishment), it is difficult to believe that
even a well intentioned private organization could conduct a fair and comprehensive criminal trial. Further, when we contrast the legitimacy of
a trial that stood on dubious political foundations (such as Nuremberg, which was founded by conquering nations to prosecute a vanquished
one) with the other possibility - giving some of the most heinous criminals immunity for their crimes - privatized criminal tribunals look
somewhat more appealing. Private NGOs such as Amnesty International have a great deal of authority and legitimacy in the international arena
(more legitimacy than many democratic states) based solely on account of their balance, competence and fairness. There is no reason to believe,
in theory at least, that a private, non-governmental criminal court could not function in a similar fashion. The reason why liberals support
democracy (and as much democracy as possible) is on account of the empirical link between democracy and fair trials: democratic bodies are
more likely to provide fair trials, but there is no necessary link between the two concepts and thus a legitimate, private criminal justice is
(theoretically, at least) possible.

n49 It reads as follows: 'In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled
to a fair and public hearing within a reasonable time by an independent and impartial tribunal, established by law', Art. 6(1).

n50 Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Tadic (IT-94-1-A), Appeals Chamber, 2 October 1995, S
45.

n51 'The important consideration in determining whether a tribunal is 'established by law' is not whether it was pre-established or
established for a special purpose, or situation; what is important is that it be set up by a competent organ in keeping with the relevant legal
procedures, and that it observes the requirements of procedural fairness', ibid.

n52 To be legitimate, an international tribunal 'must be established in accordance with the proper international standards; it must provide
all the guarantees of fairness, justice and even-handedness, in full conformity with internationally recognized human rights instruments', ibid.
On this point, see J. Davis, 'Two Wrongs Do Make a Right: The International Criminal Tribunal for the Former Yugoslavia was Established
Illegally - But It Was the Right Thing to Do ... So Who Cares?', 28 The North Carolina Journal of International Law and Commercial
Regulation (2002) 395-419.

n53 The Appeals decision in Tadic has come under criticism by some scholars. For example, Alvarez argues that this argument is 'at odds
with settled rules of construction. It is also not consistent with how this phrase has been interpreted at least by some human rights entities,
namely as a distinct requirement separate from other guarantees for criminal defendants', J. Alvarez, 'Nuremberg Revisited: The Tadic Case', 7
European Journal of International Law (1996) 245-264, at 248. While Alvarez's critique may have some merit as an evaluation of the Chamber's
legal hermeneutics, it is hardly decisive on the matter. Further, the Tadic precedent has been taken up in part at least by the ICTR. See
Judgment, Kanyabashi (ICTR-96-15), Trial Chamber, 18 June 1997, S 43.

n54 See the executive order of 13 November 2001, available online at http:/ /www.whitehouse.gov/news/releases/2001/11
/20011113-27.html (visited 26 October 2005).

n55 As Human Rights Watch has argued, the Tribunals as conceived by the Military Order of 13 November 2001 deprive accused
terrorists of some of their basic due process rights (such as the inclusion of hearsay evidence, the right to appeal to a civilian court and the
denial of habeas corpus). 'If the proposed commissions try terrorist suspects under the existing military orders and instructions, the trials will
undermine the basic rights of defendants to a fair trial; yield verdicts - possibly including death sentences - of questionable legitimacy; and
deliver a message worldwide that the fight against terrorism need not respect the rule of law', available online at http:/ /hrw.org/backgrounder
/usa/military-commissions.htm (visited 26 October 2005). The problem with these trials and the source of the unease that they cause in the
human rights community is the very real fear that they are unjust, not that they are undemocratic.

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