Separate opinion in international criminal justice: legitimacy and limits of influence

Abstract

This article is devoted to the study of the role of separate judicial opinions within the system of international criminal justice, examined through the lens of their impact on the legitimacy and effectiveness of international criminal courts and tribunals. The starting theoretical premise is that international criminal justice operates within a coordinate (horizontal) model of authority, characterized by the absence of rigid hierarchy and centralized enforcement mechanisms. Consequently, the level of trust in and perception of these institutions by states, international organizations, and the broader political community becomes of fundamental importance. In this context, it is argued that the institution of separate judicial opinions does not undermine the authority of judicial bodies; on the contrary, it has the capacity to function as a mechanism for strengthening that authority.

The article analyzes the principal functions of international criminal justice, including accountability, norm-setting (preventive), and pedagogical functions, and also examines different approaches to understanding the legitimacy of international judicial institutions. Particular attention is paid to four dimensions of legitimacy—consent legitimacy, purposive legitimacy, universal values legitimacy, and performance legitimacy—within which the significance of separate judicial opinions is assessed. It is demonstrated that their publication contributes to enhancing the transparency of judicial proceedings, ensures accountability of judicial activity, and creates conditions for external oversight of the administration of justice.

Separate judicial opinions are considered not only as an element of internal judicial deliberation but also as an independent instrument of legal and social influence. They perform a communicative function by broadening access to legal discourse and enabling the inclusion of a wider range of actors, while also creating opportunities for the development of alternative approaches to the interpretation and evolution of international criminal law. Particular attention is devoted to their role in contemporary debates concerning the limits of individual criminal responsibility, especially within the practice of international criminal tribunals and the International Criminal Court.

In conclusion, it is substantiated that the institution of separate judicial opinions constitutes an important element in ensuring the legitimacy of international criminal justice, as it integrates the functions of transparency, accountability, and legal development, thereby enhancing the institutional capacity of international judicial bodies to fulfill their mandates.