This article aims to explain the protean nature of the concept of “legitimacy,” arguing that its variability largely stems from denoting a quality of institutions that is both internally complex and sensitive to variations in institutional context. While this institutional-context sensitivity often leads to confusion and miscommunication, it is also what centers the concept’s meaning and use. To better understand legitimacy’s different forms of institutional-context sensitivity, and how they are interconnected, the article shifts from analysis and comparisons of concepts and theories of legitimacy to analysis and comparison of specific legitimacy arguments regarding specific institutions. It introduces a structured framework for analyzing legitimacy claims, beginning with the identification of the institutional level that the argument is directed at. This approach highlights how legitimacy assessments vary across higher and lower institutional levels—a crucial aspect of institutional-context sensitivity that has been underexplored in recent institutional legitimacy literature. The framework, comprising four steps of analysis and two supporting figures, advances our understanding of the complex nature of institutions’ legitimacy and underscores the importance of distinguishing between the legitimacy of an institution and the legitimacy within an institution. Throughout, the article illustrates the framework with examples drawn from scholarly debates on the legitimacy of the International Criminal Court.

Taking Global Constitutionalism as an agora, a platform for international interdisciplinary discussions this article asks a question about the state we are in with regard to the international order as an order that is not just a ‘rule-based order’ but also more substantially, a ‘legal order’ based on the rule of law. The topic is illustrated with reference to examples of ‘contested compliance’ i.e. objections to implementing international law and/or international rulings by international actors on behalf of signatories of states parties of a treaty. Three questions guide this discussion. The first is a question of normative change: are we facing a change regarding United Nations member states’ respect for and handling of the rule of law, or is a larger change of international law itself imminent? The second is a question about the effects of the shift from ‘normal’ contestations of norms to ‘deep’ contestations of the international order itself. And the third is a question about pluralism and diversity: are the UN Charter Order’s institutions, conventions and organisations sufficiently equipped to respond to an ever more diverse range of internationally, transnationally, and sub-nationally raised justice-claims? The article elaborates on each of the three themes in light of the current situation of contested compliance with obligations under international law.

In 2021, the Ntaganda case introduced a new approach to evaluating the monetary liability for reparations in the International Criminal Court (ICC) by explicitly recognizing joint and several liability and centring the determination of the quantum of reparations on the harm suffered by the victims and the costs to repair it. As suggested by the Ntaganda Trial Chamber, these two innovations promote a stronger separation between the reparation process and the criminal trial, in order to consolidate a compensatory and victim-centred approach to reparations awarded by the ICC. This article critically appraises the innovations in Ntaganda through the lens of Article 21 of the Rome Statute, focussing on three elements: (i) the evolving jurisprudence on monetary liability in the ICC prior to the Ntaganda case; (ii) the case law on reparations of hybrid criminal courts; and (iii) the notion of general principles of law derived from the national legal systems of the world, in the sense of Article 21(1)(c) of the Statute. The article argues that, despite its victim friendly veneer, the approach introduced in Ntaganda should not be taken for granted. Besides the fact that multiple important aspects and ramifications of this approach remain unaddressed, those two innovations may have serious implications for the victims, the convicted persons, and the ICC’s reparations process as a whole.

Franz Perrez is Director-General of the Directorate of International Law at the Federal Department of Foreign Affairs (FDFA), Switzerland. He is responsible for the development and interpretation of international law and ensuring that Switzerland's strategic rights are respected abroad. As a member of the FDFA senior management, Mr Perrez is also jointly responsible for the FDFA's strategic approach and advises the Federal Council, Switzerland's representatives abroad and other Federal Administration offices on international law issues.

Prior to his new role Mr Perrez was appointed Switzerland's Ambassador for the Environment and Head of the International Affairs Division at the Federal Office for the Environment (FOEN) in 2010. In this capacity, he headed the Swiss delegations to international environmental and climate negotiations for thirteen years.

After studying law in Bern and Paris, Mr Perrez worked at the FDFA's Directorate of International Law from 1993 to 1995. He went on to study at New York University, where he gained a master of laws focusing on international law and completed a PhD thesis on the topic of sovereignty as a principle of cooperation. On returning to Switzerland, he took up a position at the World Trade Organization (WTO) Division of the State Secretariat for Economic Affairs, before joining the FOEN in 2001.

Mr Perrez has proven expertise in international law. He has widely published in the area of international environmental law, international environmental governance, the relationship between trade and the environment, and public international law. Since 2008, Mr Perrez has also lectured on international environmental law at the University of Bern School of Law. He served as a panellist on the newest WTO tuna–dolphin dispute between Mexico and the United States, and as Switzerland's Ambassador for the Environment and Chief Negotiator for Environmental Issues, namely climate change, biodiversity, chemicals and waste, he led the Swiss delegation to the Rio+20 conference and to the Paris Climate Change Conference in 2015. He was President of the Basel Convention (COP 11 in 2013) and President of the Rotterdam Convention (COP 8 in 2017) and facilitated the negotiations on mitigation of the Paris Agreement. Through his work within and outside of Switzerland, he has built strong networks around the world and within the Federal Administration.

The article focuses on reparations, as ordered by the International Criminal Court (ICC) against a convicted individual. It has long been orthodoxy that such measures fulfil solely compensatory objectives, for they lack any punitive intent. This article offers a rival account. An analysis of the respective regulatory and contextual framework reveals that, by design, reparations are allowed to pursue compensatory and punitive goals equally. An analysis of the reparations orders themselves affirms that, in practice, the ICC utilizes reparations as a means to accomplish compensatory and punitive objectives both. It is maintained that reparations orders are both remedial and punitive in nature. Ignoring this reality has a negative impact on individual prerogatives, and contradicts fundamental sentencing ideals of international criminal justice. It follows that the current reparations order regime should be reformed. The ICC should either explicitly acknowledge reparations as punishment, or detach them from criminal proceedings altogether.

The International Criminal Court (ICC) has come under challenge in recent years as some countries have decided, or considered, to withdraw from it. Against this backdrop, an emerging literature has begun to examine attitudes toward the court among the general public as a key court constituency. However, little is known about how domestic elites perceive the court. This research gap is particularly surprising given that domestic elites have a considerable impact on both public and state support of the court. This article explains why political and societal elites across world regions have confidence or lack confidence in the ICC. We present the results from a unique survey of 722 elite respondents conducted from 2017 to 2019 across six countries: Brazil, Germany, the Philippines, Russia, South Africa, and the United States. We furthermore enrich our analysis by using public opinion data to draw comparisons between elites and the general public. The analyses reveal that the views of elites are most consistently related to their perceptions of other, more well-known international organizations and their country’s relationship with the ICC. Our findings indicate both similarities and differences between how elite and public opinion about the ICC are formed, demonstrating the value of further research on elite opinion on international courts.

La Cour pénale internationale s’est penchée récemment sur la question nouvelle de la réparation des préjudices transgénérationnels. Dans son analyse, la cour s’appuie sur un type de préjudice qui dépasse la victime immédiate et qui en vise une qui n’a vécu l’événement traumatique original, que par l’entremise d’un transfert générationnel. En ce qui concerne la réparation, il faut établir si ce préjudice est spécifique et autonome justifiant une reconnaissance et, par conséquent, une mesure de réparation. La question de réparer un préjudice transgénérationnel est d’actualité et encore peu étudiée en droit pénal international. Le présent article vise à apporter une contribution dans ce domaine en examinant la façon dont le préjudice transgénérationnel est juridiquement élaboré dans certains exemples s’inscrivant dans un contexte de violations massives et graves des droits humains. Enfin, l’article analyse la jurisprudence de la Cour pénale internationale, mettant en lumière les difficultés et les dilemmes générés par la reconnaissance des préjudices transgénérationnels dans la sphère juridique pénale.

The International Criminal Court (ICC) is a legal institution embedded in international politics. Politics shaped the Rome Statute of the ICC, which is rooted in norms and rules of European lineage and security interests of party states. Politics constrains and influences the operation of the Court, which has adapted in response to oversight and governance of the Assembly of States Parties, and to political actions extrinsic to institutional rules. The ICC also has political effects in situation states. A brief history shows that application of Rome Statute triggers across state parties with different social conditions skewed geographic distribution of its investigations and prosecutions towards Africa, a structural bias that catalysed a legitimation crisis for the ICC. Subsequent exercises of expansive jurisdiction aimed at nationals of non-African, non-party states – including Israel and some of the world's great powers – have dampened African complaints and advanced the ICC agenda, but intensified non-legitimacy claims by powerful non-party states. To survive, Court organs must follow legal mandates, yet be responsive to pressing international political demands, continuously risking the legitimacy of the ICC as a legal institution and adverse political reactions by antagonised governments. Careful management of the tension between law and politics at the ICC may modestly reduce antagonism towards the Court, but that tension cannot be resolved, and confrontations over the ICC's legitimacy are certain to recur.