The Gatekeeper of the ICC - Prosecutorial Strategies for Selecting Situations and Cases at the International Criminal Court
95 Pages Posted: 2 Jun 2016 Last revised: 1 May 2019
Date Written: May 22, 2016
The Prosecutor of the International Criminal Court (ICC) has a unique role in the proceedings before the Court. It is the organ primarily tasked with choosing among the numerous situations and cases under the Court’s jurisdiction. The legal criteria for situation and case selection, provided in the Rome Statute and related regulations, are relatively open as to allow the Prosecutor a considerable degree of discretion. In order to guide this discretion, the Office of the Prosecutor (OTP) has developed certain policies and strategies. Prosecutorial policy and strategy stands, almost by definition, at a crossroads between law and politics. This study identifies strategic choices of the OTP in situation and case selection, and analyzes them in relation to the ICC´s objectives. There is tensions between the need for predictability and legal certainty on the one hand, and for pragmatism and case-by-case flexibility on the other hand. The study finds that the OTP is downplaying its own discretion by emphasizing the legalistic and apolitical character of its decision-making, bringing the objectives of ending impunity, preventing crimes and providing redress to victims to the fore. The objectives of restoring peace and security and of contributing to a historical record have been secondary to the OTPs strategic choices.
Keywords: International Criminal Court, prosecution strategies, case selection
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