Reflections on the ICC Prosecutor's Recent 'Selection Decisions'
Forthcoming in Max Planck Yearbook of United Nations Law, Volume 17, 2013
34 Pages Posted: 20 Jul 2013 Last revised: 6 Apr 2014
Date Written: July 19, 2013
Taking as a starting point in an assessment of three major selection decisions made by the ICC Prosecutor in the situation in Mali, this Article provides for a discussion of the key challenges relating to explaining how the ICC Prosecutor undertakes its selection decisions. First, the Article explores the Prosecutor’s justifications for acting positively on Mali’s self-referral to the ICC. Second, the Article examines how the Prosecutor justifies that some crimes, but not others, will be subject to further investigation. Third, the Article provides for a discussion of how the Prosecutor is selecting suspects for further investigation. These three selection decisions are examined in light of the governing law and policies as well as the Prosecutor’s earlier practice and the scholarly debate, with an aim at debating some of the broader legitimacy challenges currently facing the Court. In contrast to what the Prosecutor suggests, the Article concludes that self-referrals do appear to constitute a special category of cases where different standards apply and further that the gravity concept does not provide a clear framework for making selection decisions.
Keywords: International Criminal Court, self-referrals, gravity, selectivity, Mali
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