Legitimacy Throughlines in the Structural Design of International & "Internationalized" Criminal Tribunals

Today, the rather surprising and sudden surfeit of prosecutions for international crimes by states utilizing universal jurisdiction as we open the second decade of the 21st Century may represent a preference for domestic over international criminal prosecution altogether. Yet, the legitimacy quotient remains a key part of the discussion. For example, as discussed in section V below, with respect to the crime of Russian aggression against Ukraine, opinion is divided as to whether prosecution for this crime should proceed from a newly created international tribunal or from an “internationalized” court within the Ukrainian judicial system.[1] Ukraine backs the former precisely because they feel it would garner maximum legitimacy. The United States, Ukraine’s largest financial, military, and political supporter in its war against Russia, prefers the latter, perhaps because of the very legitimacy it might garner – thereby curtailing Washington’s future options for acting in a manner which might come close to aggression, such as the illegal 2003 invasion of Iraq. Consequently, legitimacy is a key component of discussions underlying both models. Unfortunately, not much polling data exists to measure perceptions of legitimacy from the public, victims’ groups, the international community in general, or the international criminal justice community in particular.[2]Anecdotal commentary, academic assessments, funding concerns, and annual reports from prosecutors to governing bodies such as the U.N. Security Council or the Assembly of States Parties form the broad basis for a legitimacy discussion—such as it is. What has been missing is a comprehensive comparative analysis that can better inform this discussion. While certainly not a replacement for robust polling data, the tabular data offered in this section III at least provides comparative points about structural choices that can better inform this conversation. Although, we begin, foundationally, at the beginning, with a brief consideration in section II of the Nuremberg experience.