Justice Without Politics? Prosecutorial Discretion and the International Criminal Court

Abstract:     
No aspect of the International Criminal Court's (ICC) institutional architecture has provoked more controversy - or proven more central to the United States' opposition - than has its provision for a standing prosecutor authorized to pursue investigations and indictments of international crimes on his own authority. Existing debate on prosecutorial authority has tracked familiar lines with the Court's supporters maintaining the Prosecutor must be guided by legal criteria and remain impervious to outside political pressures, and with the Court's detractors arguing that stronger political oversight is necessary to prevent an unaccountable Prosecutor from hijacking the Court to pursue a politicized agenda.

Thus focused on problems of legality and accountability, the existing debate has offered a limited, and ultimately unsatisfying, perspective on the problem of prosecutorial discretion. This Article seeks to remedy that deficit in two ways. First, I provide a more considered account of the ICC Prosecutor which explores how the very structure of the Court - with its framework of prosecutorial independence and mandatory deference to complementary national proceedings - will impose fundamental prosecutorial policy dilemmas that complicate legalistic accounts of the ICC's work. Second, although these problems reveal a fundamental instability in the standard conception of the ICC, I explore ways in which the ICC Prosecutor may adopt policies that moderate the tension between prosecutorial independence and the legitimacy challenge posed by the substantive dilemmas of prosecutorial discretion. I argue here for a policy of selective political deference by which the Prosecutor defers to the justice policy judgments of legitimate political actors in times of political transition when actual arrests are more likely and competing justice proposals pose a more troubling challenge to the ICC's authority. In addition to supplying a normatively desirable policy, this approach also provides a framework for understanding the policy decisions thus far adopted by ICC's current Prosecutor.

Number of Pages in PDF File: 92

Keywords: International Criminal Court, war crimes, prosecutorial discretion, criminal law, international law, international criminal law

JEL Classification: K14, K33

Accepted Paper Series