Global Constitutionalism and the International Criminal Court: A Relational View
GCILS Working Paper Series, 2020, Issue 1 (1).
30 Pages Posted: 12 Nov 2020
Date Written: September 23, 2020
International criminal law (ICL) poses distinctive challenges to the scholarly agenda of global constitutionalism. Descriptively, ICL qua criminal law implies a distinctive institutional process – the trial – that is largely unknown to constitutional processes. It is nonetheless via the trial and its assigned functions that global authority is exercised in the international criminal realm. Can global constitutionalism account for the role of the international criminal trial? Further, international criminal tribunals employ particularly coercive tools to perform its functions: it arrests suspected offenders (with the assistance of states), interrogates them, judges them, may convict and ultimately imprison them. Can global constitutionalism normatively account for this coercive aspect?
In this article, I argue that global constitutionalism can successfully tackle these challenges. My argument builds upon three interconnected propositions (P1-P3) with emphasis on the context and practice of the International Criminal Court (ICC). First, I reconstruct the collective dimension of Rome Statute crimes through the ICC’s predominant modes of criminal liability. I then use global constitutionalism to interpret this collective dimension. This collective dimension indicates, I argue, that Rome Statute crimes are not only concerned with the gravity of the acts performed on the victims but also with the necessary conditions to form and preserve a political community that can exercise constituent power (P1).
The second step is to justify the specific role of the international criminal trial in global constitutional terms. On this point, I suggest that Antony Duff’s relational account of criminal responsibility is particularly suited to provide the structure of a global constitutional argument. Indeed, Duff precisely focuses on the relational question of who has the authority to call wrongdoers to account. Using Duff’s relation model of criminal responsibility, I suggest that the international trial hence embodies a community of responsible states and state-like authorities calling each other to account (P2).
Finally, I explain the coercive dimension of Rome Statute crimes through an dis-analogy with constitutional and human rights law. While human rights violations may benefit from restriction clauses through the application of the proportionality test (e.g. national security, public health, etc.) and/or protecting other rights (e.g. “the rights of others”), Rome Statute crimes indicate a deliberate enterprise of perverting the constitutional relation and this explains the need to coercively interfere with the offending agent (P3).
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