The Power of Justice: How Procedural Justice Concerns Affect the Legitimacy of International Institutions.

Author:Dembinski, Matthias

1 Introduction

Global governance is in crisis. Important indicators of this crisis are widespread complaints from the Global South about double standards and selectivity in the application of global norms. Western observers tend to dismiss those complaints as mere political rhetoric that is used to mask disagreements about the substance of formally agreed norms. In contrast, we argue that the criticism about double standards needs to be taken seriously on its own terms. It signifies the relevance of justice concerns and is indicative of an important legitimacy crisis of global governance in a dimension that has not yet received much attention in research: the legitimacy of norm application. While scholars have extensively debated how to improve the legitimacy of global governance through equal participation in the formulation of global norms, through changes in the substance of norms and through improving the outcomes of global governance, procedural unfairness in the application of norms has gone almost unnoticed as a source for legitimacy problems.

In this article, we recapitulate the story of the complex and increasingly adversarial relationship between the International Criminal Court (ICC) and some African states as well as the African Union (AU) to illustrate this link between procedural justice and the legitimacy of global institutions. This is a crucial case for the future of global governance because the support of leading African organizations and states had been instrumental in establishing the ICC and was widely regarded as evidence that liberal protection norms would take root in the non-Western world. In fact, the widespread African support for the ICC emanated from a normative shift in Africa from a culture of nonintervention to a doctrine of nonindifference. This shift had become clear, for instance, in the AU constitution's "condemnation and rejection of impunity" (Article 4(0)). However, after early instances of implementation, the issuance by the ICC of an arrest warrant against Sudanese president Omar al-Bashir in 2009 and the indictment of leading Kenyan politicians for the 2007-2008 postelection violence in their country, the relationship between African actors and the court soured to the point where the AU accused the ICC of "hunting Africans" and being a court for Africa. (1) The underlying critique that fueled this conflict was that "double standards" were applied. (2) In fact, even though gross human rights violations and war crimes also occurred in other parts of the world, nine of the ten current ICC investigations are in African countries and all of the individuals indicted by the ICC have been from Africa. In 2016, South Africa, Burundi, and Gambia announced their intent to leave the ICC, calling on the other African states to follow suit. (3)

Even though the position of African states toward the ICC has never been uniform and many states and a majority of civil society organizations continue to express support for the court, (4) the fact that many of its former supporters, including politically highly significant countries like South Africa, have now turned into opponents of the court is alarming. (5) Why did this happen?

A standard view of why these governments changed their position vis-a-vis the ICC points out that the overrepresentation of African cases results from the practice of self-referrals and that Africans are well represented within the ICC. According to this view, the underlying motive in delegitimizing the court is to shield African leaders from ICC investigations. (6) Thus, what seems to be a U-turn is, in fact, continued opposition to the principle that there should be no impunity for sitting heads of state--opposition that had been glossed over during the creation of the ICC and the early phase of its operation.

In contrast, we argue that complaints about double standards point to a genuine concern. The conflict about ICC practice began as a conflict not about the substance of the nonimpunity norm, but about the procedures for referring and deferring cases. According to the AU critique, these had been arbitrarily used by the permanent members of the Security Council to further their ulterior interests. Heeding the procedural concerns and giving African governments a meaningful voice in referral and deferral decisions could have taken the escalatory potential out of the conflict so that former supporters of the ICC would not have turned away from the court.

Our goal in this article is threefold. First, we seek to establish norm application as an important dimension of global governance that significantly affects whether global governance institutions are considered legitimate by their addressees. Second, we introduce a strand of research to the global governance debate that gives center stage to the link between procedures of norm application and the legitimacy of institutions: empirical justice research, which has spelled out this link in neighboring disciplines such as social psychology. Third, we translate insights from empirical justice research to the realm of global governance and show how this sheds new light on AU criticism of the ICC.

2 An Overlooked Legitimacy Problem: Norm Application

Researchers have extensively discussed the legitimacy of global governance institutions; that is, whether those subjected to their rules should or actually do accept those rules as binding. Yet this debate has almost exclusively focused on three sets of problems: problems of input, output, and substantive legitimacy. We argue that there is a fourth set, which we call legitimacy of norm application. These legitimacy problems result from disagreements about the processes through which previously agreed norms are applied to concrete cases. Before we explore how such problems can be addressed, in this section we briefly look at the three well-known categories of legitimacy problems to argue that the problem of double standards cannot be captured adequately in these established categories.

All research on the legitimacy of global governance (ours included) begins with the proposition that there is a legitimacy problem. According to a much-used distinction, this can be conceived of either in normative or in sociological terms. (7) In other words, the problem is either inherent in institutions, which do not concur with philosophical standards of legitimacy; or the actors subject to the rules do not regard the institutions as legitimate (i.e., do not accept the obligation to obey them). Regardless of the perspective, however, the literature centers on three aspects of global order that potentially can lead to (claims of) illegitimacy.

First, research on substantive legitimacy centers on the question of whether the content of global governance norms holds up to philosophical or empirical legitimacy standards. In this view, the core challenge for global governance lies in institutionalizing norms whose prescriptive content is acceptable on a global scale. This directly leads into the long-standing philosophical debate about the possibility of globally acceptable norms. Communitarian authors argue that the problem of global governance lies exactly in the fact that norms cannot be made globally acceptable, whereas universalists attempt to identify just such a set of universally acceptable norms. (8) Potential strategies can range from restricting global cooperation to only a thin layer of universally acceptable norms to legitimation strategies that could help make initially controversial norms more widely acceptable.

Second, a related strand of research deals with problems of input legitimacy. According to this research the key problem for the acceptance or acceptability of global norms lies in the procedures through which they are formulated. Organizations such as the Group of 7 (G7) or closed-door negotiations about trade deals, for example, are (regarded as) illegitimate because they exclude important stakeholders. The remedy is mostly seen in "democratizing" global governance, and the debate then turns to the question of how to realize which principles of democracy function on the global level. (9)

A third strand, finally, looks at output legitimacy; that is, at the results that global governance generates. From this point of view, legitimacy problems result from the fact that outcomes of global governance processes are inadequate or unsatisfactory, either because the original problems remain unresolved or because new problems are created. Institutions for poverty reduction that do not result in less poverty or free-trade institutions that contribute to increased global inequality are cases in point. The remedy here is to formulate rules in a way that makes them more successful in providing common goods. (10)

Complaints about double standards and the selectivity of norms do not fit any of these categories. The norms might have come about in a rightful way, they might be substantively shared, and they might lead to efficient solutions. Rather, the problem lies in the institutions through which these norms are applied to concrete cases. Such problems of the legitimacy of norm application have hitherto received little attention in the legitimacy literature. One result of this neglect is that real-world complaints about double standards are often understood as indications of other legitimacy problems, in particular of substantive and output legitimacy. What this ignores, however, is that it can make perfect sense to substantively support a norm, but to consider the institutions for its application so deficient that they lack legitimacy.

In the remainder of this article, we are interested in finding out under which conditions social actors regard the application of abstract norms to individual cases as legitimate and are willing to go along with the results. Such questions have been extensively examined in a strand of research that has received little attention in...

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