Deliberation and Global Criminal Justice: Juries in the International Criminal Court
Gastil, John, Lingle, Colin J., Deess, Eugene P., Ethics & International Affairs
As part of a broad scholarly discussion about how democratic practices may be integrated into global political culture, this article identifies an as yet unrealized opportunity to bring deliberative democracy and an additional infusion of legitimacy into international governance. We propose that a fully developed set of democratic global institutions should include, in some manner, one of the most venerable citizen-centered deliberative mechanisms--the jury. A handful of countries, such as Japan, Russia, and Argentina, have made varying degrees of progress in recent years toward incorporating new jury systems to burnish their legal institutions. (1) Furthermore, civic reformers often have regarded the jury system as an important element of public policy-making, as in the case of citizens' juries--deliberative bodies of typically randomly selected citizens that are asked to consider testimony and evidence to arrive at recommendations on public policy questions. (2) To date, however, there exists no movement toward a multinational or global jury system, and few have ever taken up the cause, even as a matter of conjecture. (3)
Juries can be powerful instruments of public engagement, education, and legitimation. At the national level they offer valuable civic education in self-governance, (4) and there is no reason to assume they could not perform a similar function at the international level. There are many ways in which one could approach the establishment of a global jury. In this article, we develop our argument in relation to one particular venue, the International Criminal Court (ICC). This deliberate narrowing of scope gives us a concrete frame of reference within which to test an abstract philosophical argument, but it also foregrounds the most provocative--and, perhaps, most promising--global setting in which a jury might be implemented. We wish to stress our view that a jury may not be appropriate for all cases brought before the ICC, but that under certain circumstances it could contribute significantly to the perceived legitimacy of the Court's decisions and to its function as a legal institution. Neither do we propose simply to transfer the Court's ultimate decision-making power from judges to juries. Rather, we envision a scenario whereby case managers may incorporate citizen deliberation into the process at key stages of the proceedings to foster greater fairness and transparency.
Specifically, our argument has three parts. First, we demonstrate the basis upon which we believe the jury system can confer greater legitimacy on the ICC. Next, we address the most significant logistical challenges to implementing such a system. Finally, we provide a concrete example of just how such a global jury might be developed and managed.
Public legitimacy--broadly understood as the acceptance of a public institution's authority to govern--has been a foundational tenet throughout the process of establishing the ICC. It was essential in the early stages, when negotiators were developing a framework that would attract a sufficient number of potential member states to ensure viability, and it remains essential now, as decisions in The Hague begin to exert practical political and legal influence. From the pre-ratification debates over jurisdiction to the more recent controversy over Prosecutor Luis Moreno-Ocampo's charging of Sudanese president Omar al-Bashir with war crimes, the question of legitimacy emerges repeatedly as a touchstone for both the ICC's proponents and critics. (5) Michael Struett, for example, notes that "the rules, procedures, and crimes embodied in the ICC statute are the result of a broadly consensual, rational, communicative discourse. Consequently, the ICC stands in a considerably stronger position to gain worldwide respect and legitimacy"; nevertheless, key criticisms persist, "claim[ing] that the ICC prosecutor and judges are insufficiently accountable to others, and therefore the exercise of the ICC's powers is potentially anti-democratic. …