72 Am. U. L. Rev. 779 (2023).

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Abstract

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 or “Court”). 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 states perceive 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.

This Article suggests that if the ICC can carry out a successful investigation in Ukraine, leading to possible prosecutions, the outcome for the ICC is that states and all interested stakeholders may begin to perceive the Court as an institution corresponding to its founding mandate to end impunity for the most serious international crimes. If states do not continue to support the Court, however, these important outcomes for victims and for the Court may be lost.

* Professor of Law, Indiana University Robert H. McKinney School of Law.

** The Charles R. Emrick Jr. – Calfee Halter & Griswold Professor of Law, Cleveland-Marshall College of Law.

The authors thank Stuart Ford, Douglas Guilfoyle, Rebecca Hamilton, Margaret DeGuzman, Jennifer Trahan, Leila Sadat, and the participants in the ICC Scholars Forum 2022 for their comments.