The Democratic Deficit of the Judicial Branch ofthe European Union

An in­depth research of the democratic deficit and legitimacy of theInternational Criminal Court and the European Court of Justice

By: Karolina Sowulewska

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International institutions are always under incredible scrutiny and critique, and aim to present themselves

as highly democratic, in order to maintain a certain level of legitimacy. Through this paper, I will analyze

and scrutinize the democratic legitimacy of the European Court of Justice (ECJ) and International

Criminal Court (ICC), by presenting crucial court cases that extended the jurisdiction of the courts,

while still maintaining their legitimacy as international institutions. I will also look at scholarly debates

about the democratic deficit, and the public sentiment, or lack therefore, in the judicial branches of

democratic international institutions. This was done by analyzing the responsiveness, casework, strength,

and policy implementations of the two courts.

In a highly Westernized society, democracy is often seen as an outlet to monitor supranational

institutions and maintain order, organization and structure. A democracy is, by definition, a system of

government by the whole population or all the eligible members of a state, typically through elected

representatives. It is the practice and principles of social equality, the foundation of Western political

thought. In this paper, I will be analyzing transnational democracy, focusing on the involvement of the

demos in supranational organizations, as well as the involvement of nation state actors. For the sake of

this paper, transnational democracy will be defined as a democracy beyond the boundaries of nation

states, where citizens are obligated to comply with sovereign national policies, as well as transnational

policies. In said democracy, the common good of the constituency is essential, as is protection from the

self interests of governments. Membership to a transnational democracy should be imbedded into part

of the citizen’s identity, and will justify political authority and constitutional ‘transnational patriotism’. To

reiterate, transnational democracy is dependent on the supranational community and demos, from which

strides the authority of international institutions, such as the judicial courts of the EU. For as Patrizia

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Nanz said, “legitimacy converts power into authority and thereby simultaneously establishes an

obligation to obey and the right to rule” (Nanz, 2006: 111).

If there is any opaqueness, lack of participation, intentional disclusion, or corruption of

democratic values, then there is a democratic deficit, and pertaining to this paper, the institutions will be

seen as democratically illegitimate. Corruption, lack of transparency and misconduct can taint

international institutions. The European Union has been highly and publicly criticized as having a

democratic deficit; but studies have already been conducted in that area. Rather, it is time to focus on

one key divisions of the EU: the judicial branch. Two very powerful institutions, the International

Criminal Court and the European Court of Justice shall be analyzed through an academic lens, as well as

through legal casework.

The two courts greatly differ in jurisdiction, policy implementation, and public involvement, but

both are key elements of the European Union judicial system. These two institutions were specifically

selected in order to target different sectors and spheres that interact with the EU and the European

citizens. I was greatly surprised, while conducting my research, by the lack of public sentiments and little

visibility in interest with the European Court of Justice, especially in the media channels, while the

International Criminal Court had much more public following. This phenomena will be addressed later in

the paper.

In order to do analyze the democratic legitimacy and deficits, we must first examine the ECJ and

any potential democratic deficits or threats to legitimacy it may have. Then, I will compare the ECJ with

the ICC, to contrast the courts, and further scrutinize democracy beyond the nation states on different

scales and levels of the international community.

In order to do so, we must define the jurisdiction of the International Criminal Court and

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European Court of Justice. The International Criminal Court was created as a permanent tribunal to

prosecute individuals for crimes conducted within four specific categories in accordance to the Rome

Statute. The Rome Statute is the constitutional treaty that ratifies the ICC, and has approximately 122

signatories as of 2013. All 27 member nation states of the EU have signed into the Statute, ratifying and1

accepting it as a legitimate international court.

The Rome Statute delineates the four categories of crimes as follows: Genocide, Crimes Against

Humanity, War Crimes, and Crimes of Aggression. Genocide, as specifically defined by Article 6 of the

charter, is defined as “the following acts committed with intent to destroy in part or as a whole, a

national, ethnical, racial or religious group” as follows: killing members of the group, serious bodily or

mental harm, imposing sterilization or preventative measures to giving birth, forcibly transferring children

of one group to another group, and inflicting inhumane conditions on a group with the intent to destroy

their livelihood.

Crimes Against Humanity (Article 7, Rome Statute) are prohibited acts committed as part of a

widespread or systematic attack, with the leader’s knowledge, directed against any civilian population.

Crimes Against Humanity include, but are not limited to, murder, extermination, enslavement,

deportation or forcible transfer, torture, rape, sexual slavery and forced pregnancy, sterilization,

imprisonment or severe deprivation of physical liberty in violation of fundamental rules of international

law, and other inhumane acts, further specified in the Statute. War Crimes (Article 8, Part 1) are crimes

committed as part of a plan or policy, or as part of a large­scale commission of such crimes. They

include willful killing, torture or inhumane treatment, biological experiments, willfully causing great

suffering or serious injury to body or health, extensive destruction and appropriation of property not

1 Member states of the European Union (EU) include: Austria, Belgium, Bulgaria, Cyprus, Czech Republic,Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta,the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom.

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justified by military necessity and carried out unlawfully, illegal deportation, confinement and taking of

hostages.

The fourth and final clause, Crimes of Aggression, has only recently been approved, and will be

signed into the Rome Statute in 2017, where it will henceforth become an active clause. It delineates

Crimes of Aggression as acts meant to destroy, expanding the term of ‘war crimes’ for the use of

certain weapons in armed conflict not of an international character. Article 9 assists in defining Crimes

by expanding the interpretation and application of Articles 6, 7 and 8. However, the Court has

jurisdiction only with respect to the crimes committed after the implementation of this Statute. The ICC

is also allowed an extension of jurisdiction if the following circumstances were to occur: a criminal is a

national of a state party, alleged crimes were committed on the territory of a state party, the situation is

referred to the Court by the United Nations Security Council (UNSC). The ICC was intended to be

used as a last resort, investigating and prosecuting only where the national courts have failed. Article 17

pertains to the issues of admissibility/inadmissibility, stating that a case can and will be investigated or

prosecuted by a State, which has jurisdiction over it, or if the state is unwilling to or unable to carry out

the investigation, then it is referred to the ICC (Article 20, Paragraph 3).

Therefore, the International Criminal Court has a widespread jurisdiction, but in a selective and

limited arena of human rights violations. It can occasionally, and case­specifically, extend its jurisdiction

over national courts, into gray areas, in order to prosecute a criminal. I specifically chose the ICC the

international institution to contrast the ECJ, for it has democracy, membership, and citizenship beyond

the nation state, which was a claim that not many scholars support. This democracy beyond the nation

state greatly legitimizes the ICC.

The European Court of Justice oversees very different case matter, which is just as important

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and essential in maintaining transnational democracy as the ICC. The European Court of Justice has the

responsibility to ensure that the law is observed and to interpret and apply the Treaties of the European

Union. These treaties established the constitutional basis of the various institutions and European Union

as a whole. It is the highest court in the EU in regard to Union law, but not national law, and is tasked

with interpreting EU law and ensuring equal application to all member states. The court has broad

jurisdiction to hear various types of actions while the General Court has the jurisdiction over actions

brought by individuals. It has the power to declare measures void, in par with Article 264 and 231 of

the Treaty on the Functioning of the European Union. The broad jurisdiction definition allows the court

to hear many different case subjects, and thus, has seen a dramatic increase in the number of casework

presented. The European Court of Justice can deal with policies, Union law, failure to act,

compensation based on non­contractual liabilities, and work reform.

Both courts have received tremendous scrutiny over increases in jurisdiction; specifically, the

ECJ has been increasingly questioned by EU member states, of overstepping its power by taking on

more and more cases and extending competence. This expansion places too much authority in the hands

of the judges. In a similar sense, ICC has been questioned in retrospect to democratic legitimacy, since

it supposedly does not take into consideration the needs of the people affected. Further accusations and

speculations are as follows.

The second part of my research analysis will present and evaluate the different scholarly debates

over the legitimacy and democracy of the courts, in academia. For example, Sidney Tarrow analyzed

the ECJ, and found what he believed to be a limited reach into domestic politics. He claims that while

the court is a powerful supranational tribunal, which has the right to intervene over the heads of national

governments, it can only apply rulings to plaintiffs in certain cases which the court agrees to adjudicate

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(Tarrow, 2006: 193). It then takes additional and continued mobilization for the cases to be generally

implemented (Tarrow, 2006: 193). However, in opposition, Karen Alter and Jeannette Varga, argue

that “by following through, activists have translated legal victories into social policy changes with real

impacts on the conduct of employers and the government” (Alter, Vargas 2000: 464). Such victories

are instrumental in the development and expansion of the European Union and policy change. Yet,

others still argue that the jurisdiction and areas affected by such activism and court decisions are minor,

and implement policy change in very small areas, such as telecommunication and electricity reform, as in

the Engel case, which will be later addressed. A three stage process must be implemented in order to

achieve social policy change. The court must identify or create rights, in response to the petitioner’s and

plaintiff's claims; domestic actors must mobilize support or resist the broader application of these

obligations, and member states and the EU institutions must accommodate these decisions by adjusting

their law and policy (Tarrow, 2006: 193). Yet, further critique speculates that social actors are often

weak and immobilized, specifically in public sector cases; for example, immigrants seeking reform and

rights to social benefits. Bureaucratic red tape tangles public employees, both in their respective states

and in Brussels, with the EU (Guiraudon, 2001:193). In some cases, these employees have been hired

specifically to avoid paying out social benefits and implementing social rights. This reiterates the

accusation that there is equal access to justice and social benefits in the courtrooms of the ECJ, but

‘justice’ is much more constrained in the domestic arenas of national policy. Furthermore, pertaining to

transnational activists, many are often foreigners in the country they are most active, thereby raising

suspicion, for their actions and activisms may threaten the morals, values and ideals the naturalized

citizens may have. Tarrow perfectly illustrates this by stating, “we have seen throughout, that

transnational activism will be episodic and contrary, and it will have its most visible impact on domestic

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politics. Second, international institutions regimes, and treaties will continue to reflect state relations and

state power, but transnational activists will increasingly find in them a ‘coral reef’ where they both lobby

and protest, encounter others like themselves, identify friendly states, and from time to time, put together

successful global­national coalitions. Finally... transnational activism does not resemble a swelling tide of

history, but is more like a series of waves that lap on the international beach, retreating into domestic

seas but leaving incremental changes on the shore” (Tarrow, 2006: 219). In keeping with the metaphor,

it is possible that slow and incremental changes on the shore of international policy will lead to larger and

more dramatic change, even if the process is slow and complicates efficiency.

Additionally, while the ECJ s considered to be central to the effective functioning of a

democratic system, it often tends to be neglected by the European citizens and media, despite the fact

that the ECJ has the power and responsibility to ensure that even governments are not subjected above

the law. The lack of public sentiment and neglection of the court may be a foreshadow to the alleged

democratic deficit.

In the absence of the ECJ, powerful political actors, governments, nation states, etc. could see

themselves above the law and avoid implementation of EU policy. Thereby, creating the lack of a

valuable and essential check in the democratic system. The ECJ has been successful in the

implementation and legal integration of the EU through the Supremacy and Direct Effect Doctrines,

which also promoted new levels of economic integration facilitating compliances with existing EU law,

even in cases when member state governments were in opposition (Carruba, 2003: 76). Despite that,

the ECJ evolved from being a court entirely dependent on voluntary governmental compliance and

implementation, to one that can act as if the governments are constrained by its rulings (Carruba, 2003:

77). Indeed, more and more governments stake losing public support, incumebency and even angering

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of its constituents by failing to implement ECJ decisions and verdicts, and would rather pay the fines and

dues than discredit the court, and risk domestic unrest and turmoil. Yet, others such as Garrett and

Weingast believed that the ECJ did indeed facilitate integration, but only when the governments so

desired it. For example, governments would not want to accept ECJ rulings if the benefits were greatly

outweighed by the costs, and the court had no mechanism of direct enforcement to make governments

comply with a ruling they refused to accept. This would greatly delegitimize the institution and sap its

power as an international and transnational court. (Garrett 1995, Weingast 1993: 78). Furthermore,

Mattli and Slaughter argue that the court’s decisions have been protected by the ‘mask and

shield’.“Legal discourse ‘masked’ the political ramifications of the ECJ decisions from governments, and

the existence of domestic norms of rule of law and judicial independence ‘shield’ the ECJ decisions

from noncompliance” (Mattli, Slaughter, 1995: 78). Such legal context allowed the ECJ to establish

doctrines that otherwise governments might have prevented. Thus, begging the question: is the European

Court of Justice a tool of member state governments or an important and independent force? This ties

into the focus on my analysis, since according to my criteria of democracy, a ‘democratic’ institution

should not be solely dependent and used as a tool of transnational actors and member states. Being a

tool implies that the institution is not functional on its own, and demands complete interaction with

member state governments, instead of working compliantly with them. A subtle distinction, but one that

is vital to the legitimacy of the ECJ.

While noncompliance has existed in the past, the ECJ can closely monitor disobedience or

failure to implement, and in turn, reduce the probability that a defection goes unobserved. Member

states can mold the environment in which the ECJ operates, but cannot directly control court behaviour.

The same situation applies for domestic and national courts: the government can clearly ignore and

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overturn the rulings, but doing so creates potential costs for the government to be seen as undermining

the legitimacy of the legal system. Governments will comply with adverse decisions when costs are low,

but less inclined to do so when the costs and stakes raise dramatically. Therefore, the ECJ attempts to

anticipate compliance, and when governments are willing to push each other for noncompliance and rule

accordingly (Carruba, 2003: 85).

The third part of this paper, will focus on the previously mentioned ‘Demos­Phenomena’, as I

refer to it, (Sowulewska, 2013), and my evaluation. The ‘Demos­Phenomena’ is observed as the

occurrence of lack of public sentiment and interest in the democratic judicial institutions, as illuminated

through the ECJ. The public tends to ignore the ECJ, which provokes concern, for it is the people and

citizenry that can use observations to update beliefs, disillusionments or support of their government, "if

the public is not sufficiently suspicious of its government’s behavior, governments will have a free hand

to ignore adverse rulings on EU law independent of how costly the legitimacy costs may be…If the

public observes a high enough proportion of cases in which its government is complying with adverse

rulings, the public's belief that court rulings are supposed to be bending will be sufficiently strengthened

to cause the public [to want] to punish a government if it observes an unpaid judgement" (Carruba

2003: 90, 93). Yet, this strange phenomena occurs frequently within European society. The public does

not consider the ECJ as a particularly 'legitimate' institution. For example, Carruba states that in several

studies, members of the European public would tend to support their national government over the ECJ,

if their government ignored an ECJ ruling that was especially costly for the government. This may be due

to the fact that the public tends not to be particularly well informed or interested in what the ECJ is

dealing with, or how EU law is being applied. With luck, the ECJ receives some public press, but it

needs to be strategic in using the press, and what is highlighted of its decision making. On a tangential

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note, this phenomena is something I ran into, while conducting my studies and gathering evidence. When

attempting to find public opinion of the ECJ, or even highlighted cases, I received little to no results. The

case matter did not seem to pique an interest in the public sector, and I could only find legal casework

to read, which could prove to be difficult for the European layman. Citizens fail to acknowledge or

realize the power and influence the court has over important domestic and national law, thus influencing

the citizens due to a wide range in jurisdiction.The lack of interest, publicity, exposure and attention was

a confirmation of the speculated lack of legitimacy of the European Court of Justice. In such sense, the

ECJ has more hope in enforcing European policy and EU law on a nation­by­nation basis, instead of

attempting to work at a highly public and international level.

Despite public sentiment, the ECJ is a key regulatory institution of the EU; the the case of Van

Gend en Loos of 1963, addressed later, caused the principle of direct effect to be promulgated for any

part of the Treaty of Rome. In the years that followed, it was this basic judicial principle that spread to

other areas, such as gender quality, worker's rights, telecommunications, electricity, and many other

arenas. It was the ECJ that construed efforts on part of governments to establish conditions that had the

effect of restricting the access and rights of foreign workers, whether intentional or not. Caporaso and

Tarrow found such essential declarations and decisions in other ECJ cases, such as in Royer (case

48/74 Joel Noel Royer 1976, E.C.R) that states, "articles 48, 52, and 59…which may be construed as

prohibiting Member States from setting up restrictions of obstacles to the entry into and residence in

their territory of nationals of other Member States, have the effect of conferring rights directly on all

persons falling within their ambit" (Caporaso, Tarrow, 2009: 29). National member states have jealously

guarded their 'turf' on issues such as welfare, primarily for electoral reasons, and yet the Court has been

able to stitch together social policy from case law, with wide discretion given to the ECJ on a case by

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case basis. Since, the court's jurisprudence has expanded into many areas, including but not limited to:

the definition of family (ranging from heterosexual nuclear family to co­habitants and same sex

marriages), the emotional bonds between children, parents and relatives, pregnancy rights, custodial and

visitation rights regarding parents and children in different countries, etc. Even widows of EU workers

have retained rights after the death of a spouse, even if the couple had been separated (Caporaso,

Tarrow, 2009: 37). This role of social protection against the social policies of the member states is vital,

especially with the expansion of globalization, and the threat of social rights as citizens to be shrinking.

By broadly interpreting the social objectives of the treaties and secondary legislation, the ECJ and

national courts have used the jurisprudence of the European Court of Human Rights (ECHR) to fill in

any gaps found in the EU treaties (Caporaso, Tarrow, 2009: 38).

Many citizens and member states fail to see the power, authority and broad jurisdiction of the

European Court of Justice, and see it as an illegitimate institution with little to no influence in the public

arena of the citizenry. Technically, governments hold enough power to easily shatter the ECJ's authority

through noncompliance, since the court has no mechanism of policy enforcement and implementation.

Such noncompliance of the ECJ dangerously undermines the legitimacy of the EU itself, since the ECJ is

branched off the European Union, as its major judicial power. If the EU lacks judicial legitimacy, then it

stands to question the legitimacy of the executive and legislative branches as well.

Yet, despite these setbacks, the ECJ has successfully pieced together social and economic

policies that protect the citizens of the EU from overzealous governments or infringement of their rights.

Even working at a case by case basis, the ECJ can string together a policy that applies to all EU

member states and the citizens, and influence compliance based off of predictions of legitimacy costs

and public perception. The ECJ is not a grand, powerful mechanism, nor does it pretend to be; it sits in

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the shadows, quietly working to maintain democracy and social rights for all citizens of the European

Union, gradually but efficiently.

The International Criminal Court, while also a key institution for maintaining and implementing

justice and democracy, varies greatly from the European Court of Justice. The ICC has also been

accused and criticized for being undemocratic, especially questioning on whether the exclusive focus on

the 'trial' justice is in fact helpful for the victims of War Crimes, Crimes Against Humanity, and

Genocide. The pursuit of "justice" may interfere with the pursuit for peace through negotiations.

Additionally, there is a undemocratic lack of consolation of the victims and populations affected by the

crimes they prosecute. According to Marlies Glasius, "criminal courts ought to be part of wider

transitional justice instruments at different policy levels. Victims of crimes and wider affected populations

have not been consulted and have not had a voice as to whether international criminal courts are their

preferred form of justice" (Glasius, 2012: 44). This would demand greater transparency and

involvement of the population in question. However, this does not demand that the International Criminal

Court should adjust policy and verdicts to be based off of local preferences. Instead, those with legal

power who intend to help the survivors of atrocities, should first ask of the society how they define their

own needs, justice and peace, but not revenge.

Since the ICC's jurisdiction is treaty­based, it comes closer to the habermasian requirement of

being based on democratic procedure (Habermas, 1996). According to Habermas, there is the

potential for a postnational [transnational] democracy which can create a political identity focused on

moral, rather than civic solidarity and duty. Democracy is rooted in the people, not merely the principles

associated with democracy.

It is arguable whether the people themselves have given consent to the courts and pass

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judgment on the main actors in the conflict. Glasius further states that "it is imperative that its [ICC's]

role and judicial activities are understood, particularly in those communities affected by the commission

of crimes under the Court's jurisdiction. The Court must therefore put in place a mechanism to ensure

that affected persons can understand and follow the court" (Glasius, 2012: 50). This two­way

communication would improve transparency and relations with the local, national, and international

communities, preventing any misunderstandings. However, while the ICC should strive for clarity and

involvement with the populations affected, it must also be weary of 'revenge', and be guided by the

neutral principles of justice, unhindered by a second agenda. While some argue that the courts may be

influenced by sentiments from the surviving victims, others have claimed that the neutral principles of

justice are rarely adhered to, and that order and predictability are prioritized over any substantive sense

of justice; "rational domination through the formal law of fixed attract concepts has emerged as suited to

the purpose of rationality of capitalist society" (Glasius 2012: 56). Henceforth, the administration of

justice is self justifying; a technical imperative, not a moral search. The moment ICC decisions are

controlled by the affected opinion of others, or any sort of external influence and pressure, it is the

moment when the judges cease to exist, and have lost their authority and power. Glasius takes a much

more democratic stance on the issue, claiming, "popular vote is the proper way to take decisions on

whether a criminal justice institution should have jurisdiction over a particular population, who should be

its judges, which suspects ought to be tried and whether they should be found guilty or innocent and

how they should be punished…therefore, international criminal courts cannot and should not be asked

to be democratically accountable in a strong sense that any aspect of their functioning should be subject

to a vote by the affected populations" (Glasius, 2012: 63). The ICC is vital as a supranational power,

and has more authority than governments since crimes against humanity are rarely committed without the

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authorship or approval of governments. For example, the crimes committed by the Nazis, the Khmer

Rouge, the interim government of Rwanda, former Yugoslavia, and countless other crimes committed

pursuant to state police and authority (Morris, 2002: 591).

The Rome Statute, the ICC Treaty, solved the problem of colluding regimes' that would shield

perpetrators and the accused, from justice. This is done by allowing the ICC to exercise jurisdiction

over the defendant even if their states of nationality are not parties to the Treaty and have not otherwise

consented to the ICC's jurisdiction; for example, the United States of America (Morris, 2002: 592).

The authority of the ICC is higher than that of the state. It also has the power to shape and integrate

decisions into the international sphere, far exceeding the power of any domestic courts. This is in part to

the excellent delineation of the Elements of Crimes that was written by the ICC Preparatory

Commission. While the ICC has the extreme definition and clarity of its clauses, the Treaty stands open

to further amendments, modifications, extensions and redefinition for future crimes. For example, the

Assembly of State Parties has amended the Treaty to define "aggression".

The ideal goal of the ICC is to prevent and respond to atrocities and human rights violations,

and should be considered a court of last resort, empowered to prosecute individuals and governments,

since this prosecution cannot be left to the nation states, which could be unwilling or unable to follow

through with such prosecution, or may have been responsible for the crimes themselves. Therefore, ICC

motivates member states to implement legislation that authorizes the prosecution of major human rights

violations, in order to make domestic law conform to ICC standards, thereby strengthening protection

of defendants' rights of due process. Morris claims that creating domestic law to abide by ICC

standards, allows government officials themselves become vulnerable to prosecution if accused of War

Crimes, Genocide, Crimes Against Humanity and Crimes of Aggression. Furthermore, "if the ICC had

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been given the power to prosecute crimes anywhere in the world…the world's most brutal regimes

would have little to lose by ratifying the treaty, just as countries like China, Syria, and Libya have had

little to lose by actively participating in the United Nations Human Rights Commission….the court

provides no protection to implementors of the world's harshest tyrannies (Morris, 2002: 151). This

could even include the right to prosecute non­party nationals for crimes committed on member state

territory. For example, prosecution of individuals that created the horrors seen in Kuwait from

1990­1991 by Iraq, Bosnia in 1992­1995 by the Federal Republic of Yugoslavia, and many other

cases.

Indeed there is a balance between involvement of the local and affected populations when

dealing with prosecution of individuals and governmental crimes, the sense of justice versus revenge, and

expending authority over national sovereign states. And while modifications, amendments and evaluation

should be frequented in the International Criminal Court, it is an essential external check in the form of

international supervision of democracy and human rights. In turn, the ICC operates under the check of

its member states, which consists unproportionately of democracies.

In order to further reiterate the democratic legitimacy of the European Court of Justice and

International Criminal Court, we transition into the fourth part of my analysis, where I will present

essential and keystone court cases that expanded the jurisdiction and maintained the legitimacy of

courts.

For example, pertaining to the ECJ, the case of Van Gend en Loos vs. Nederlandse

Administratie der Belastingen (Case 26/62, 1963), as previously mentioned. Van Gend en Loos was a

postal and transportation company that imported urea­formaldehyde from Western Germany into the

Netherlands. The Dutch custom authorities implemented an addition tariff on the import, which Van en

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Gend Loos objected, claiming that the additional tariff violated EU law, in reference to Article 12 of the

Treaty of Rome, which since has been replaced by Article 30 of the Treaty of the Functioning of the

European Union (TFEU), which dictated that "member states shall refrain from introducing between

themselves any new custom duties on imports and exports or any charges having equivalent effect and

from increasing those which they already apply in their trade with each other" (Article 12, Treaty of

Rome). The ECJ therefore ruled in favor of Van Gend en Loos, establishing that provisions of the

TFEU, were capable of creating legal rights to be informed natural and legal persons before the courts

of the member states; thereby establishing the 'Principle of Direct Effect' (Case 26/62).

Another essential case of the ECJ takes place in a completely different sector, yet still within the

limits of the court's jurisdiction. The case of Szabolcs­Szatmar­Bereg Megye Rendorkapitanysag

Zahony Hatar Rendeszeti Kirendeltsege vs. Oskar Somodi (Case 254/11) concerned with freedom,

security and justice. The local border traffic at the external land borders of the Member States and

regulation of maximum duration of stay prevented Mr. Shomodi, a Ukrainian national, from entering

Hungarian territory, on the grounds that he had exceeded his maxium duration of stay permitted. EU law

states that "aliens not subject to a visa requirement may move freely within the territories of the

contracting parties for a maximum period of three months during the six months following first entry".

Therefore, the adoption of the common measure on the crossing of internal borders should reflect the

law incorporated in the EU framework. However, Hungarian law states that border authority shall

refuse entry to any third­country nationals seeking admission for stays of three months or less, and with

due regard for their personal interest shall return such persons. Since Mr. Shomodi was in possession of

a local border permit, he was authorized to enter the border area of Hungary. The border patrol in

Hungary claimed that he had stayed in the disputed territory for 105 days, entering almost daily for

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several hours. Shomodi brought forth an appeal case concerning the refusal to allow him to enter

Hungarian territory. The court ruled that since traffic permits are granted under the special local border

traffic regime, they are established by regulation that must permit the individual to be able to move freely

within the border area for a period of three months if their stay is uninterrupted, and have the right to a

new three months each time that their stay is interrupted; it is irrespective of the frequency of such

crossings, even if they occur daily. And again, we see the ECJ work with cases that affect daily civilian

life, and work in defense of the European citizens and not influential governments. Such a decision

impacts thousands of citizens traveling across borders to provide for their families back home, and

restricted access could severely damage their income and everyday life (C­254/11). Not only does the

ECJ cover imports, exports, transnational borders, and foreign work permits, but environmental case

law as well. For example, the case of Landes Umwelt Anwaltschaf Salzburg & Bundesminister fur

Verkehr, Innovation und Technologie vs. the Austrian Government and European Commission. This

case was concerned with the interpretation of relevant provisions of the Council Directive

(85/337/EEC). The proceedings were between Salzburger Flughafen and the Umwelt Senate, the

Administrative Chamber for Environmental Matters, concerning the obligation to subject certain projects

which would expand the infrastructure of the airport in Salzburg, Austria, to an Environmental Impact

Assessment (EIA). An EIA is an assessment of the possible and potential positive and negative impacts

that a proposed project may have on the environment, consisting of both environmental, social and

economic aspects. The directive declared that the project to expand the airport needed an EIA, for

there would be significant effects on the environment affecting human beings, fauna and flora, soil,

water, air, climate, landscape, material assets and cultural heritage. The directive was transposed into

Austrian law in 2000; the Environmental Impact Assessment Act. The airport terminal was built in

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2003­04, and has been operational since. In the case presented, the airport sought authorization to alter

taxiways, but consisted of no actual changes to the runway itself, and thereby needed no national

legislation that required any EIA. However, the Court ruled that component national authorities must

ensure that it is first examined whether the projects concerned are likely to have significant effects on the

environment, and if so, then an EIA needs to be implemented. This was done to avoid any misses of the

EU laws, such as splitting projects which taken together, are likely to have significant effects on the

environment, but not separately or individually. The companies must take into account the cumulative

effect of such projects. Again, we see the ECJ work in another completely separate sector. It is easy to

see how the court uses case work to establish policies that apply to all member states of the European

Union. Slowly, but steadily, the ECJ transforms casework into law and policy, further expanding its

jurisdiction and legitimacy as it grows larger and more significant.

And so, we shift our focus to scrutinize the International Criminal Court. As previously

mentioned, many Europeans view the ICC as more legitimate than the ECJ, and court cases gain much

more publicity in the international sphere. While conducting my research, I found several blogs, articles,

and videos dedicated to analysis of criminal cases, and the horrors of human right violations.

Unfortunately, crime, suffering, and massive casualties tend to make the headlines, since the public is

much more interested in achieving a sense of justice, and in some cases, revenge, rather that settlements

of work permits and visas. For example, there was tremendous uproar in the academic community over

the dispute of the assassination of Libyan dictator Muammar Gaddafi, who was sentenced to an ICC

hearing for violations of human rights and War Crimes, but was assassinated by an American Special

Forces team, before a trial could take place. Such cases are publicly highlighted by the press, and

closely followed in the months leading up to trials, easily gaining publicity and popularity. Another

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example is the case of the Prosecutor vs. Saif Al­Isalm Gaddafi, and Abdullah Al­Senussi (pretrial ICC

01/11); Saif Al­Islam Gaddafi was the Honorary Chairman of the Gaddafi International Charity and

development Foundation, and acted as the Libyan de facto Prime Minister. He was allegedly criminally

responsible as an indirect co­perpetrator for two counts of Crimes Against Humanity; murder and

persecution, violating Article 7(1)(a) and 7(1)(h) of the ICC charter. Abdullah Al­Senussi was a colonel

in the Libyan Armed Forces and current head of Military Intelligence, and was too, allegedly

responsible, as an indirect perpetrator, for the same violations. And as stated previously, Muammar

Muhammad Abu Minyar Gaddafi was the Commander of the Armed Forces of Libya and held the title

of Leader of the Revolution [Head of State], but his case was terminated 22 November 2011, following

his assassination.

There is also the case of the Prosecutor vs. Thomas Lubanga Dyilo in the Democratic Republic

of Congo (ICC 01/04­01/06). Thomas Lubnga Dyilo was found guilty of war crimes such as enlisting

and conscripting children under the age of 15 into the Force Patriotique pour la Liberation du Congo

[Patriotic Force for the Liberation of Congo; FPLC] and using them to actively participate in hostiles.

This was deemed punishable, and in violation under Article 8 (2)(e)(vii) of the Rome Statute.

Then, there is the case of the Prosecutor vs. Ahmad Muhammad Harun, Ali Muhammad Ali

And­Al­Rahman in Darfur, Sudan (ICC­02/05­01/07). Harun was the former Minister of State for the

Interior of the Government of Sudan and Minister of State for Humanitarian Affairs of Sudan. He was

accused of being criminally responsible for 42 counts on the basis of his individual criminal

responsibility, including 20 counts of Crimes Against Humanity, ranging from persecution, forcible

transfer of population, rape, inhumane acts, imprisonment of severe deprivation of liberty and torture; 22

counts of War Crimes, ranging from murder, attacks against the civilian population, destruction of

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property, rape, pillaging, outrage upon personal dignity, violating an impressive amount of clauses in

both Article 7 and 8 (1a, d, e,f, g, h, and 2ci, lei, 2exii, 2evi, 2cii). Ali Muhammad Ali Abd­Al­Rahman

was allegedly the leader of the Militia (Janjaweed) and is responsible for 50 counts on the basis of his

individual crimes in violation of Article 25(3)(a) and 25(3)(d) of the Rome Statute. He was accused of

22 counts of Crimes Against Humanity, ranging from murder, deportation or forcible transfer of the

population, imprisonment or other severe deprivation of physical liberty in violation of imprisonment or

other severe violations of fundamental rules of international law, torture, persecution, inhumane acts

inflicting serious bodily injury and suffering. He was also accused of 28 counts of War Crimes ranging

from violence to life and person, outrage upon personal dignity in particular humiliating and degrading

treatment, intentionally directing an attack against a civilian population, pillaging, rape and destroying or

seizing property; violating Article 7 (1a, 1d, 1e, 1f, 1h, 1k) and Article 8 (2ci, 2cii, 2ev, 2evi, 2exii).

As it has become blatantly apparent, most of the accused human rights violations have taken

place in Africa, spanning from Kenya, to Cote D'Ivoire, to Libya, to Sudan, to the Democratic Republic

of Congo. The perpetrators tend to be of high political standing, such as the rulers of regimes, colonels,

military leaders, and other Heads of State. We rarely see any accusations of leaders in developed

countries, and the United States refuses to be a signatory to the jurisdiction of the International Criminal

Court, questioning its legitimacy. Is the ICC willing to only prosecute criminals in countries they know

they will have international support for? Or is it just a coincidence that Genocide, Crimes Against

Humanity, Acts of Aggression, and War Crimes all tend to correlate in Africa and in undeveloped

regions? These are further areas of study to investigate, if we are to use the ICC and see it as a

legitimate institution.

To conclude, European citizens, member states and the rest of the global community heavily rely

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on the European Court of Justice and International Criminal Court in order to maintain control, rule of

law, hegemony, legitimacy and power. These two institutions serve as great checks on democracy, and

prevent countries and their leaders to rise above the law. Also, as it is blatantly obvious, the European

Court of Justice and International Criminal Court deal with completely different subject matter, and the

European Court does not deal with international cases not pertaining to Europe, as the ICC does.

We create the legitimacy of the institutions by supporting them, and condemning our

governments when they do not comply with the rulings of the courts. The ECJ and ICC, as I hopefully

have illustrated, have completely different jurisdiction and deal with different case matter. However, they

are both essential in maintaining our Westernized society. The ‘Demos­Phenomena’ is one that further

questions the democratic deficit of the judicial branch, for democracies are built off the demos, the

people, the citizens. This is a key element that legitimizes democratic institutions, yet is disregarded and

overlooked frequently, as addressed earlier in the paper.

Despite my best efforts, my research lacks depth in many sectors of my analysis that I wish I

could have expanded on. For example, the public opinion and interpretation of the courts; the lack of

information and societal sentiments pertaining to the European Court of Justice would have been

fascinating to unravel. However, I intentionally chose these two institutions because they are the most

known and relevant in their respective fields. Ideally, contrasting more international courts could give

more clarity to the legitimacy, or lack therefore, in the judicial branches of democratic institutions. I have

discovered through my research that the strength, authority and legitimacy does not come from the

institutions themselves, nor does it come from not big governments: these principles come from the

demos, the ones who are ruled by their government. When we invest our trust and power into these

courts, we create their authority and legitimacy. If the courts lack legitimacy, it is because we have

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created the deficit.

Bibliography:

Carrubba, Clifford J. "The European Court of Justice, Democracy and Enlargement." European UnionPolitics 4 (2003): 1­26. Print.

Caporaso, James A; Tarrow, S. “Polanyi in Brussels: Supranational Institutions and the TransnationalEmbedding of Markets”. International Organization, VOlume 63, Issue 04, 2009, pp. 593­620.

Glasius, Marlies. "Do International Criminal Courts Require Democratic Legitimacy?." European Journalof International Law 23 (2012): 1­24. Print.

Habermas, Jürgen. Between facts and norms: contributions to a discourse theory of law anddemocracy. Cambridge, Mass.: MIT Press, 1996. Print.

Habermas, Jürgen. Die postnationale Konstellation. Frankfurt am Main: Suhrkamp. 1998. Print [English,2001].

Madeline Morris, The Democratic Dilemma of the International Criminal Court, 5 Buffalo Criminal LawReview 591­599 (2002).

Mayerfeld, Jamie . "The Democratic Legacy of the International Criminal Court." Fletcher Forum of

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World Affairs 28.2 (2004): 147­156. Print.

Moravcsik, Andrew . "In Defense of the 'Democratic Deficit': Reassessing Legitimacy in the EuropeanUnion ." JCMS 40.4 (2002): 603­624. Print.

Nanz, Patrizia. "Constitutional Patriotism Beyond the Nation State”." Europolis . Manchester and NewYork: Manchester University Press, 2006. 111­121. Print.

Tarrow, Sidney G. "Transnational Impacts on Domestic Activism ." The new transnational activism.New York: Cambridge University Press, 2005. 183­219. Print.

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