Abstract

The relationship between power, law and consent is a key feature of the Western debate on criminal law. On the one side, defining the legitimate ways of exercising the punitive power has been a critical question since the Enlightenment thought onwards and especially as to the rule of law doctrine. On the other side, the role played by public punishment in shaping consent and its communicative potential have been crucial questions for critical, as well as non-critical approaches to criminal law in contemporary thought. These questions gain in strength and radicalism when it comes to international criminal law (ICL). In this case the filter of the state is not present anymore to mediate between power, law and consent, and the power to punish individuals is directly exercised by international institutions. This means, on the one hand, that traditional justifications of the power to punish and which are elaborated on in the domestic sphere are not useful anymore in legitimating international punishment. International criminal norms are not framed by an international democratically elected parliament, and their exercise is not controlled by the complex system of checks and balances typical of the rule of law. On the other hand, having not being created by a sovereign, international criminal law cannot be conceived as an instrument to build or consolidate consent around the sovereign. A double-sided dilemma therefore arises: traditional explanations are no longer apt to answer the question whether ICL is legitimate, while ICL itself can no longer be considered an instrument to build consent around the traditional power exercising it, namely the state. Although I consider both sides of the dilemma equally interesting and stimulating, I will focus here only on one side of the coin: the ability to build consent of the ICL institutions, and in particular the International Criminal Court (ICC). In other words, instead of asking whether the consent around the ICC is broad enough for the Court to be considered legitimate, I shall ask whether the ICC is able to build consent around the world order it embodies.