Hybrid Tribunals and the Composition of the Court: In Search of Sociological Legitimacy
- The University of Chicago Law School
- Publication Type:
- Journal Article
- Chicago Journal of International Law, 2016, 16 pp. 482 - 522
- Issue Date:
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Sociological legitimacy is a critical yet undertheorized element of a successful international criminal tribunal. This Article examines the link between sociological legitimacy and the composition of hybrid courts by analyzing the practice of five international criminal tribunals: the ICC, ICTY, ICTR, SCSL, and the ECCC. It finds that the presence of local judges on international criminal courts offers a firmer normative basis for enhancing their legitimacy among the local community. However, the Article also finds that despite impressive scholarly efforts to demystify the “homogenous” international community, international judges are not sufficiently particularized. The solution I offer is both principled and pragmatic. The appointment of international judges should prioritize individuals from regional states (provided the states were not involved in the conflict), those of the same legal tradition, and individuals who speak a language of the affected state. This solution pays greater respect to national sovereignty and enhances the prospect that judges sensitive to local customs will be involved, increasing the likelihood that the court will be regarded as legitimate. The court’s sociological legitimacy, in turn, heightens the court’s prospect of success.
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