LEGITIMATE SUPRA-NATIONAL ADJUDICATION IN THE NEW ERA: THE REQUIREMENT OF COMPARATIVE BENEFIT.

• Author: deGuzman, Margaret M.

TABLE OF CONTENTS TABLE OF CONTENTS INTRODUCTION I. INADEQUACY OF EXISTING NORMS II. COMPARATIVE BENEFIT CONCLUSION: COMPARATIVE BENEFIT OF ICC ACTION COLOMBIA AND UKRAINE SITUATIONS INTRODUCTION

The new era of international courts and tribunals will be characterized by an array of mechanisms with overlapping jurisdictions to adjudicate. (1) The International Criminal Court (ICC) does not have the capacity to address all the world's accountability demands and is unlikely to develop such capacity. As such, additional accountability mechanisms will continue to be created, ranging from international institutions like the ad hoc tribunals for former Yugoslavia and Rwanda, to hybrid and internationalized courts like the Special Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia. Regional courts may also start to proliferate. The African Union has already adopted a statute for a proposed African Criminal Court, (2) and there are ongoing discussions about establishing a Latin American and Caribbean Criminal Court to address transnational organized crime. (3) The Parliamentary Assembly of the Counsel of Europe, among others, has advocated for the establishment of a European court to try Russians for aggression in Ukraine. (4)

The continued proliferation of supra-national criminal courts in the new era necessitates greater attention to the conditions under which adjudication by such institutions is legitimate. This is distinct from the question of when the institutions themselves are legitimate. The latter has received substantial attention in the scholarship and generated various theories, including theories focused on state consent, and other substantive and procedural requirements. (5) The legitimacy of supra-national adjudication has received far less attention. Yet an institution's legitimacy does not ensure the legitimacy of its decisions. Indeed, the legitimacy of important decisions such as whether to adjudicate situations and cases can substantially impact the institution's overall legitimacy.

When commentators address the legitimacy of international adjudication, they usually focus on whether international or national criminal adjudication is appropriate, paying less attention to the possibility of non-criminal modalities, whether at the national or supra-national level. This focus on criminal accountability has been termed the "anti-impunity agenda" (6) and has come to dominate global discourse concerning certain kinds of large-scale crimes. (7) Prior to the establishment of the ad hoc tribunals and ICC, societies grappling with the aftermath of large-scale crimes had greater freedom to adopt non-criminal modalities such as amnesties, truth commissions, and lustration. Today, criminal justice is widely considered a necessary facet of transitional justice and perhaps even a victims' right. (8)

Scholarship concerning the legitimacy of supra-national criminal adjudication has focused almost exclusively on the ICC's complementarity regime. Under the Rome Statute, the ICC may not adjudicate cases that are being investigated or prosecuted by a state with jurisdiction, unless the state is unwilling or unable genuinely to carry out such investigation or prosecution. (9) A substantial literature exists analyzing how the ICC ought to conduct this complementarity analysis. (10) The ICC's jurisprudence has clarified that when no state with jurisdiction is actively investigating or prosecuting the same person for substantially the same conduct as the ICC, the requirements of complementarity are met and the ICC may exercise its jurisdiction. (11) This broad legal rule regarding the admissibility of cases does not fully address the moral question of when the ICC ought to investigate a situation or adjudicate a case.

This essay provides some preliminary thoughts about the conditions required for supra-national adjudication, at the ICC and elsewhere, to be morally legitimate. I use supra-national adjudication to denote adjudication by any institution other than a national court with traditional jurisdiction-conferring ties to the case, such as territoriality and active and passive personality. By this definition, supra-national adjudication encompasses not only the work of the ICC and ad hoc international criminal tribunals, but also hybrid institutions such as the SCSL and ECCC. Perhaps counter-intuitively, it also includes adjudication by national courts exercising universal jurisdiction over international crimes with which the state has no connection except, perhaps, the presence of the accused on its territory. Although the adjudicating institution in such cases is national, I nonetheless consider the case supra-national because it involves crimes that are widely considered to concern the global community and the communities most directly affected by the crimes are outside the adjudicating state.

This essay adopts a moral legitimacy lens, asking when international criminal law institutions have a moral "right to adjudicate" (12) situations and cases. As such, it is concerned with legal legitimacy only to the extent that legal authority affects moral authority, and it largely sets aside questions of sociological legitimacy, which concern peoples' perceptions of appropriate authority. The essay treats legitimacy as a scalar concept rather than a binary one, at least above a minimal threshold. Decisions below the threshold may be deemed entirely illegitimate, and those at the high end of the spectrum may be clearly legitimate, but many decisions are better analyzed in terms of the strength of their legitimacy.

I argue that for supra-national adjudication to be strongly morally legitimate it must provide a comparative benefit relative to available alternatives, whether at the international or national level, and whether criminal or non-criminal. Supra-national adjudication should be avoided when a different justice modality would provide greater benefit. Thus, for instance, when the ICC is deciding whether to investigate or prosecute a situation, or a state is deciding whether to exercise universal jurisdiction over international crimes, they should evaluate all available alternative approaches to justice and should proceed with supranational adjudication only if it would be comparatively beneficial.

My argument for comparative benefit is strongly utilitarian. (13) It not only rejects the retributive claim that punishment is a good in itself, (14) but also posits that the greater the social good it produces, the more morally justified is the punishment. I do not assume, however, that punishment provides any social good. Scholars have made strong arguments that criminal punishment produces net harm to society at both the national (15) and international levels. (16) For present purposes, I set aside that debate and assume that criminal adjudication provides some benefit at least some of the time. However, by emphasizing the importance of comparative benefit analysis, I hope to encourage decision-makers to limit criminal adjudication to situations where no better justice alternative exists. Whereas decision-makers currently assume that a situation that is legally admissible is one in which adjudication is morally legitimate, I argue that such adjudication is illegitimate if a more beneficial form of justice is available--whether criminal or otherwise.

Comparative benefit is not reducible to clear and consistently applicable legal criteria. The potential benefits and harms of different justice modalities are various and incommensurable. Moreover, the benefits and harms of supra-national adjudication accrue to different communities, from the global to the regional, national, and local. Nonetheless, I argue that decision-makers should make their best efforts to weigh the potential benefits of proposed supra-national adjudication as compared to other available justice mechanisms, especially at the national level, before engaging in such adjudication. Although this may seem intuitive, it is not current practice. Rather, pursuant to the "anti-impunity agenda," political and legal actors generally assume that supra-national adjudication is the best response to international crimes, at least in the absence of national criminal proceedings.

Comparative benefit analysis would require decision makers to answer three questions in deciding whether to engage in supranational adjudication of international crimes: (1) what potential benefits does such adjudication offer, and what harms might it inflict; (2) what alternatives avenues to justice exist and what are their potential benefits and harms; and (3) do the net benefits of supra-national adjudication outweigh those of the alternatives? This is a complex analysis. First, the potential benefits of various approaches to justice must be assessed in relation to all potentially affected communities. The benefits of supra-national adjudication generally inure most significantly to the global community, largely in the form of crime prevention through norm expression. (17) Even when "victim-centered" prosecutorial strategies are adopted, the limited resources available and distance from the events make such adjudication of limited assistance to affected communities. Moreover, supra-national adjudication can negatively affect national communities, such as by diverting resources from other forms of assistance. On the other hand, national trials and alternative justice mechanisms mostly benefit national communities, although they too can have impacts at the global level. If regional justice mechanisms are available, their potential benefits and harms at the regional, national, and international levels must also be assessed.

Identifying the potential benefits and harms of supra-national adjudication to each of these communities is no easy task. Moreover, comparing net benefits to the various relevant communities is both complex and sometimes socially and...