Choosing to Prosecute: Expressive Selection at the International Criminal Court
56 Pages Posted: 8 Mar 2011 Last revised: 26 Aug 2021
Date Written: March 2, 2012
The International Criminal Court (ICC) has the mandate to “end impunity” for serious international crimes around the world but the budget to prosecute only a few cases per year. This high degree of selectivity represents one of the greatest threats to the Court’s legitimacy. Every selection decision the Court makes is scrutinized and many have been strongly condemned. States that supported the creation of the Court have become critical and one has threatened to withdraw from the regime. Unlike national courts, which are expected to prosecute most serious crimes, the ICC’s legitimacy rests on perceptions of relevant audiences that it is selecting the “right” crimes and defendants for prosecution.
The scholarly and advocacy discourse surrounding the problem of the ICC’s selectivity currently focuses on the role of politics in selections, with critics charging that the prosecutor is improperly influenced by political considerations and the prosecutor protesting that his decisions are apolitical. This Article argues that such debates miss the ICC’s fundamental problem: that its creators failed to endow it with goals and priorities to undergird its choices. In light of this deficiency, current efforts to address the ICC’s selectivity by ensuring good process through independence, impartiality, objectivity, and transparency are bound to fail. Instead, what is needed is sustained dialogue among the ICC’s various constitutive communities about what the institution should be seeking to accomplish.
This Article contributes to that process by proposing an expressive theory of ICC selection. While the dominant theories of ICC action – retribution, deterrence, and restorative justice – provide partial justifications for its work, such theories are inadequate as rationales for selection decisions. Instead, the ICC should select crimes and defendants for prosecution according to their ability to maximize its expressive impact. Through a dialogic process of norm expression, reaction, and adjustment, the Court will ideally generate increased consensus around its work over time. If it fails to do so, the ICC’s demise will at least result from the inability of the international community to agree about the Court’s core mission rather than its failure to conceptualize fully an agenda for the institution.
Keywords: international criminal law, international criminal court, selection, discretion, expressive
JEL Classification: K14, K33
Suggested Citation: Suggested Citation