Reading 12: Kiyani
Kiyani, Asad G. (forthcoming 2016). "Legitimacy, Legality, and the Possibility of a Pluralist International Criminal Law." in: C. Bailliet and N. Hayashi (eds) The Legitimacy of International Criminal Tribunals. Cambridge University Press.
This chapter identifies sites of legitimacy contests in international criminal law, explains the difficulty of resolving those conflicts by reference to legitimacy and examines the possibility of using legitimacy as a critical methodological tool. It argues that the indeterminacy of legitimacy is an inextricable feature of international criminal law, and that this indeterminacy can be leveraged to both critical and conservative ends. In the next part of this chapter, debates about legitimacy in international criminal law are illustrated through reference to controversies over the International Criminal Court's (ICC) exercise of jurisdiction in Africa. It identifies a variety of sources and legitimacy debates that arise in respect of the ICC response to international crime in Africa. The third part situates these specific concerns in the context of larger debates about the legitimacy of international institutions and international criminal tribunals. Analysis of legalist and political theories of legitimacy and international institutions shows these debates are irresolvable. While a broad range of criteria should be used to gauge the legitimacy of the ICC (and other International Criminal Tribunals), there is no objective, universal set of criteria that can be applied to that end. Thus, legitimacy discourse can be highly pluralist in the ideas and stakeholders it recognises, but may also be deeply conservative and deferential to traditional sources of international political authority such as powerful states and international organisations. The fourth section explains the critical potential and pitfalls of this indeterminacy, arguing that the concept acts as a double-edged sword, one capable of simultaneously undermining and defending the status quo. The chapter concludes by arguing that legitimacy-based critiques may regain their critical purchase by exposing the normative and factual contradictions implied by the status quo. Ultimately, exposing this disconnect helps clear normative space for pluralist, critical approaches to the legitimacy of international criminal justice.
Why this reading?
Kiyani suggests that there is no satisfactory conception of what qualifies as a legitimate international criminal tribunal and, citing Klabbers and Piiparinen, notes that legitimacy discourse acts as a vehicle for introducing and/or excluding alternative or marginalized voices. He concludes that legitimacy can act as a an anti-pluralist tool, but it can also justify illiberal or hegemonic excesses of international criminal law. Hence, he characterizes legitimacy's flexibility as its greatest strength and most obvious weakness. The indeterminancy of legitimacy can serve both critical and conservative ends, recognizing a plurality of ideas and stakeholders, while also being very conservative and deferential to powerful states and International Organizations - it both undermines and defends the status quo. Kiyani discusses the African challenge to the ICC's legitimacy, in particular assessing the role of the Security Council, selectivity challenges. This is complemented by a critique of a narrow focus on procedural legitimacy as opposed to interdisciplinary approaches to legitimacy which would include sources, outcomes, what comes before and after the trial, as well as goals and social purposes, as well as moral and normative standards. His conclusion is optimistic, indicating the potential of legitimacy debates which should focus more on outcomes to include a diversity of voices in shaping International Criminal Law (ICL).
Questions for discussion
Kiyani states that legitimacy is "neither a static quality nor an objective one... A claim of (il)legitimacy cannot be made without reference to the particular ethical framework, normative standards and personal objectives of the person or entity making the claim. At best, this interpretive contest leads to a normative stalemate. In practical terms, however, there is no such inertia: the states and institutions that act as powerbrokers of international law retain the ability to direct the ICC over the objections of their critics. Caught in this normative stalemate, the emancipatory potential of sociological legitimacy - which recognizes a wide range of concerns, and grants normative space for less powerful states and overlooked victim communities to critique international criminal law and its institutions-remains subject to the constraints of those power relationships. If legitimacy is to transcend this impasse and act as a vehicle for meaningful critique and even the reform of the ICC (and other international criminal tribunals, ICTs), then its discursive nature must be prioritized. An institution's legitimacy is defined as part of an ongoing process of obtaining and responding to feedback, which ought to properly include a relational debate between competing descriptions of legitimacy. Critics of the ICC and other ICTs, whether they are marginalized victim communities, states, or scholars need to connect their expansive legitimacy-based arguments to both concrete outcomes and the further normative repercussions of the competing positions"
- Can you suggest mechanisms to implement Kiyani's proposal?
- How would the expanded approach to legitimacy discourse work in relation to courts within the other pillars? Is this more relevant to ICTs given the nature of the field?