Global Constitutionalism and the International Criminal Court: A Relational View

Global constitutionalism has recently come to examine international criminal law and its associated institutions, in particular the International Criminal Court. For example, it has been shown how the interaction between the Assembly of State Parties and the Office of the Prosecutor exemplifies the separation of powers that should characterize a global constitutional institution. Yet, the ICL system in general and the ICC in particular pose distinctive challenges to global constitutionalism that cannot be neglected for the comfort of theorizing. The ICC implies an institutional framework – the trial – that is unknown to constitutional processes. It is nonetheless through this framework that global authority is exercised. How can global constitutionalism account for the ICC’s institutional processes? My contribution to a global constitutional account of the ICC starts with the foundational issue of constituent power. How can the ICC exercise authority in the name of the people? Here I apply the descriptive tenet of global constitutionalism by reconstructing the ICC’s jurisdictional reach focused on state (or state-like) leaders systematically attacking civilians. I then normatively interpret this jurisdiction as concerned with the necessary conditions to form a constitutional community – in contrast with domestic criminal law focused on the relations between members of that community. The second step addresses the constitutional role of the trial. Antony Duff’s account of criminal responsibility precisely focuses on the relational question of who has the authority to call wrongdoers to account. I suggest that the international trial embodies a community of responsible states and state-like authorities calling each other to account. Finally, I explain the coercive role of the ICC via a dis-analogy with human rights law. While human rights violations usually occur in pursuing a public good (e.g. national security, public health), international crimes indicate a deliberate enterprise of perverting and destroying the constitutional relation.