اندیشه‌های حقوق عمومی

The relationship between international criminal justice and democratic sovereignty has re-emerged as one of the most contested questions of contemporary public international law. While the post-1945 Nuremberg model and the 1998 Rome Statute were premised on the idea that individual criminal responsibility and state sovereignty are mutually reinforcing, recent practice—most visibly the International Criminal Court's 2023 and 2024 arrest warrants against Vladimir Putin and Benjamin Netanyahu—reveals a deep structural tension between the judicialized logic of international criminal law and the democratic logic of national political will. Extending Martin Loughlin's critical philosophy of public law from the domestic to the international plane, this article argues that international criminal law, like domestic constitutional rights, oscillates between two irreducible functions: constraining political power and constituting it. Drawing on the complementarity regime of Article 17 of the Rome Statute, the intellectual history of the Nuremberg Charter, and the contemporary controversy over a so-called "democratic exception" to ICC jurisdiction, the article shows that the selective invocation of "rule of law" credentials by powerful democracies has converted complementarity from a sovereignty-preserving safeguard into an instrument of double standards, thereby deepening a legitimacy crisis for the very institution meant to universalize accountability.