A social psychology model of the perceived legitimacy of international criminal courts: implications for the success of transitional justice mechanisms.

• Author: Ford, Stuart

ABSTRACT

There is a large body of literature arguing that positive perceived legitimacy is a critical factor in the success of international criminal courts, and that courts can be engineered in such a way that they will be positively perceived by adjusting factors such as their institutional structure and outreach efforts. But in many situations the perceived legitimacy of international criminal courts has almost nothing to do with these factors. This Article takes the latest research in social psychology and applies it to survey data about perceptions of international criminal courts in order to understand how affected populations form attitudes about courts. The resulting conclusions are at odds with most other theorists' understanding of perceived legitimacy. Where there is a high degree of identification between large parts of the affected population and the "sides" in the conflict that led to the establishment of a court, the way in which the court is perceived will be determined largely by whom the court prosecutes. Indictments that conflict with the dominant internal narratives among the various groups will lead directly to lower perceptions of the court's legitimacy.

TABLE OF CONTENTS I. INTRODUCTION II. TOWARD A BETTER MODEL OF PERCEIVED LEGITIMACY A. The Example of the ICTY B. Motivational and Cognitive Biases That Can Affect Perceptions of Legitimacy 1. Motivated Reasoning 2. Cognitive Biases a. Heuristics b. Cognitive Dissonance c. Confirmation Bias C. Other Factors That Affect Perceived Legitimacy D. The Social Psychology Model III. USING THE SOCIAL PSYCHOLOGY MODEL TO EXPLAIN THE PERCEIVED LEGITIMACY OF OTHER COURTS A. The SCSL B. The ECCC C. Regulation 64 Panels in Kosovo D. Possible Problems with the Social Psychology Model IV. IMPLICATIONS OF THE SOCIAL PSYCHOLOGY MODEL A. The Social Psychology Model Will Apply in the Majority of Post-Conflict Situations B. Perceived Legitimacy as a Negative Sum Game C. The Problem of Self-Serving and Inaccurate Internal Narratives D. The Limits of Motivated Reasoning E. The Role of Courts in Changing Internal Narratives V. CONCLUSION I. INTRODUCTION

Domestic perceived legitimacy (1) is supposed to be a critical factor in the success of all transitional justice mechanisms. For example, Professor Jaya Ramji-Nogales argues that effective transitional justice mechanisms are those that "successfully reconstruct social norms opposing mass violence," and that the local population must perceive such mechanisms as legitimate before it will internalize the norms these mechanisms represent. (2) In this way, she makes perceived legitimacy a prerequisite to the success of all transitional justice mechanisms, including international criminal courts. (3) Others have made similar arguments. For example, Professor Laura Dickinson made perceived legitimacy a key aspect of her seminal article on hybrid tribunals, (4) and perceived legitimacy is also important to arguments about the success of international criminal courts advanced by William Burke-White, (5) Etelle Higonnet, (6) Jane Stromseth, (7) Sarah Nouwen, (8) and James Cockayne. (9) In short, there is a large body of literature arguing that positive perceived legitimacy is an important factor not only in the success of international criminal courts, but also in the success of all transitional justice mechanisms.

That same body of literature also argues that international criminal courts (and other transitional justice mechanisms) can be engineered in such a way that they will be positively perceived. Thus, Professor Ramji-Nogales argues that individual transitional justice mechanisms should be consciously designed to maximize their perceived legitimacy, (10) while Professor Dickinson famously argued that changes to outreach efforts and institutional structure can improve perceptions of legitimacy. (11) Other scholars have made arguments along these lines. (12) The result of this literature is a list of factors that various scholars have argued can be adjusted to improve the perceived legitimacy of courts, including: (1) the process by which the court is created, (13) (2) the location of the court (14) (3) the composition of the staff, (15) (4) the institutional structure, (16) (5) the procedures used during the trials, (17) and (6) the court's outreach efforts. (18) But is it true that the perceived legitimacy of international criminal courts among affected populations (19) is driven primarily by these factors? Both theory and abundant evidence indicate that in the majority of situations the answer is no.

This Article takes the latest research in social psychology and applies it to extensive survey data about how affected populations perceive international criminal courts in order to understand how these populations form attitudes about courts and to propose a new model of perceived legitimacy. The resulting conclusions are at odds with most other theorists' understanding of perceived legitimacy. To begin with, only a tiny percentage of the affected population will know how the court was created, the institutional structure it has, or the procedures it uses, and outreach efforts are unlikely to overcome this fundamental ignorance. (20) If almost none of the population knows about these factors, then it follows that perceptions of legitimacy cannot be a direct result of such factors. Of course, perceptions of legitimacy could be indirectly driven by these factors, but this does not appear to be the case.

Both theory and numerous attitude surveys indicate that where there is a high degree of identification between groups within the affected population and the "sides" in the conflict that led to the involvement of a court, the affected population's perception of the court will be determined largely by whom the court prosecutes. (21) When the court's indictments and prosecutions conflict with a group's dominant internal narrative about responsibility for the conflict, members of the group are likely to perceive the court as biased and unjust, which allows the group to discount the indictments and preserve its internal narrative. This can lead directly to lower perceptions of the court's legitimacy. Not all indictments undermine a court's legitimacy, though. For example, indictments will sometimes agree with dominant internal narratives within particular affected populations, and will not produce lower perceptions of legitimacy. (22) Nor will all indictees have a large following that identifies strongly with them. (23)

Nonetheless, in a majority of situations, perceptions of a court's legitimacy among the affected population will be driven primarily by whom the court indicts. (24) Moreover, in circumstances where all of the participants in a conflict have significant followings, perceived legitimacy will often be a negative sum game. (25) In these circumstances, virtually any attempt to assign responsibility for crimes will cause a net loss in perceived legitimacy among the affected population as a whole. This has important implications for transitional justice, as many scholars have argued that positive perceived legitimacy is crucial to the success of international criminal courts. (26) If these scholars are correct, courts in some situations cannot succeed because virtually everything they do causes them to be viewed negatively, and this problem is not limited to courts. There is reason to believe that other transitional justice mechanisms also face situations where perceived legitimacy is a negative sum game. (27) One possibility is that transitional justice mechanisms simply cannot be successful in situations where different affected groups identify strongly with different sides in the conflict.

The Author does not believe that this is the case. Rather, the fundamental problem in such situations is the mismatch between dominant internal narratives about the conflict and what actually happened in the conflict--groups are very likely to view themselves as the victims of aggression by other groups, even when this is not true. (28) This mismatch ultimately causes negative perceptions of the court when members of the group are indicted and prosecuted. It also serves as an obstacle to post-conflict reconciliation as it prevents the participants from accepting responsibility and causes each group to blame the other groups for what happened during the conflict. (29) Courts can serve a useful purpose in transitional justice if they can help align the dominant internal narratives within the various affected populations with what actually happened--and there is evidence that they can--although they cannot be expected to do this on their own, and the process is very slow. (30) Ultimately, this will simultaneously improve perceptions of their legitimacy and remove an obstacle to reconciliation. From this perspective, short-term negative perceived legitimacy is not necessarily a sign of failure. Rather, it is the price to be paid for trying to break down internal narratives that are hindering reconciliation between groups. In the long term, if a court can help break down these internal narratives, it will improve its own perceived legitimacy while at the same time opening the door to reconciliation.

Part II of this Article begins by describing how the International Criminal Tribunal for the former Yugoslavia (ICTY) was perceived in the Balkans and shows that the traditional model of perceived legitimacy cannot explain the attitudes toward the ICTY. (31) Subpart II.B presents an alternative model of perceived legitimacy, the social psychology model, which provides a better explanation of how the ICTY was perceived. Part III applies the social psychology model to perceptions of the legitimacy of the Special Court for Sierra Leone (SCSL), the Extraordinary Chambers in the Courts of Cambodia (ECCC), and the Regulation 64 Panels in Kosovo. The implications of the social psychology model for the success of international...