Many prosecutors have come under fire. Some claim that international criminal justice targets primarily weak powers rather than strong powers. For instance, the ICC has been criticized for it's heavy focus on Africa. Others worried that international criminal justice focuses on small fish rather than leaders. There are fears that prosecutorial action might be an impediment to peace deals. Are these fair criticisms? This is what we will discuss in this video. We will first focus on the foundations of prosecutorial discretion. We will then discuss three core dilemmas. Selecting situations, selecting cases and amnesties. Let us start with the foundations of prosecutor discretion. Selectivity has haunted international criminal justice since its inception. Nuremberg and Tokyo targeted a particular category of persons. Namely, the vanquished enemy party. Modern tribunals have a more objective focus that typically look into situations of crisis. The process of investigating and prosecuting crimes involves many delicate choices. What situations should be selected? What regions? Which incidents in a situation? What groups and entities should be prosecuted? The prosecution retains wide discretion to determine the timing and scope of justice intervention. It decides when to bring charges, whom to indict and how to sequence cases. The ICC statute uses concepts, such as the most serious crimes of international concern, gravity, the interest of victims or the interest of justice to guide the selection of situations and cases. These concepts frame choices, but they need to be specified. How has a court done this? We will first look at how the court selects situations. The second requires the prosecutor to consider whether crimes within the jurisdiction of the court have been committed and whether the situation is of sufficient gravity to justify further action by the court, but what does gravity mean in this context? The interpretation of gravity has caused considerable confusion. The Office of the Prosecutor first relied on the number of victims and a comparison of situations to determine whether a situation is grave enough, this approach led to contradictory results. It prompted the office not to look into alleged crimes of British soldiers committed in Iraq due to the low number of victims, less than 20, but the office did later open an investigation into an attack against peacekeepers in Sudan, which had an even lower number of victims. This prosecutorial policy was criticized for its incoherence. Today, it is recognized that the gravity determinations involve several elements. A generic assessment of whether those likely to form the object of the investigation. We have the greatest responsibility for the alleged crimes committed and consideration of certain quantitative, and qualitative elements. These elements are first of all, the scale of the crimes, which refers in to the number of direct and indirect victims and the damage caused by the crime. Second, the nature of the crimes. Third, the manner of commission and lastly their impact. This impact includes the consequence on the local or the international community. This flexible approach allows the court to investigate and prosecute a wide spectrum of criminality in diversity of situations. The prosecution can focus on situations of crisis that are illustrative of certain types of criminality or patterns of victimization. It also allows the prosecution of offenses committed by big powers. For instance and more recent practice, the court has engaged with US conduct in Afghanistan, Russian conduct in Georgia or UK conduct in Iraq. Did the gravity criteria lead to an undue focus on Africa? Yes and no. The first situation said to investigate it by the court were indeed all African. This created a perceptional bias, but the office has made it clear. The geopolitical implications of the location of a situation or geographical balance between situations are not relevant criteria for selection of situations. This is more visible in contemporary practice. Several non African situations have been under consideration, such as Georgia Ukraine, Palestine, Iraq, Afghanistan or Colombia. How does the court select cases within a situation? Case selection involves several steps. The Office of the Prosecutor is bound by the principle of objectivity to examine allegations against all groups or parties within a particular situation. This means that the office must apply the same processes, methods, criteria and thresholds to all groups in order to assess their blame worthiness, then the prosecution must select potential perpetrators. This is done based on three general criteria. The gravity of the crimes, the degree of responsibility of the alleged perpetrators and the potential charges. What does this mean concretely? Gravity requires the ICC to look at serious crimes within a given situation. This requires a case by case assessment. In relation to the degree of responsibility, there's been a strong pressure to prosecute only the big fish. This means people who are in senior positions. The Yugoslavia tribunal was criticized for its prosecution of lower ranking perpetrators, the small fish, but this critique is often to challenge some of the most important rulings in international criminal justice such as the triage case before the Yugoslavia tribunal concerned mid level defendants. There may be a need to investigate and prosecute lower level perpetrators to build the evidentiary foundations for cases against those most responsible. Moreover, the person who are most responsible for grief on notorious crimes are not always the big fish. The question whether a case is brought against an individual defendant depends on a range of additional criteria that include the quantity and quality of the available evidence. The options to secure arrest and surrender or the impact on ongoing, or future crimes. Finally, how should international criminal courts and tribunals deal with amnesties? Amnesty clauses have been included in peace treaties for centuries. For instance, in Uganda, more than 26,000 fighters have benefited from amnesties. Two questions need to be distinguished, whether an entity may an act amenities as a part of a peace deal? And to what extent to what a deal bars investigation prosecution by international criminal court and tribunals? The question rather whether an amnesty is permissible depends on treaty law or customary international law. The ICC statute does not preclude amnesties, as such. Courts such as the extraordinary chambers and the Court of Cambodia or the European Court of Human Rights have found that there is no absolute prohibition of amnesties, but granting amnesties may conflict with a duty to investigate and prosecute international crimes. It is in particular accepted that blanket amnesties for core crimes are not permissible under international law. Peace deals which combine amnesties with prospects of accountability or certain conditions, such as truth recovery, reparation for victims or guarantees of non-repetition enjoy a broader degree of acceptance. The second question is whether a domestic amnesty bars the exercise of international jurisdiction of the individual perpetrators. The answer is typically no. An amnesty limits domestic enforcement, but it does not extinguish international jurisdiction. This was confirmed by the special court for Sierra Leone and the extraordinary chambers in the Court of Cambodia, which have investigated a prosecuted court crimes. Irrespective of a domestic amnesty law. The ICC statute allows the prosecutor not to proceed a criminal action is not in the interest of justice. This clause provide certain space to accept alternative forms of justice, but the ICC Office of the Prosecutor has given it a narrow meaning. It found that there's a strong presumption that investigations and prosecutions will be in the interest of justice. It also noted that the interest of justice provision should not be considered, as a conflict management tool requiring the office of the prosecutor to assume the role of a mediator in political negotiations. The provision has never been used. So, what did we learn from this? We've seen in this video that prosecutors enjoy a wide space of discretion in selecting situations and cases. This discretion works as Dwaken once put it, like a hole in a doughnut. It is surrounded by certain general legal restrictions that define its scope and might facilitate review. Second, we have seen that almost any choice that the prosecution makes is open to challenge. There will always remain inquiries why the prosecution picked one situation or case of another. Some choices entailed political or strategic considerations that are difficult to judge from the outside. The best defense against such challenges is to explain choices properly and to base selection based on coherent, and transparent criteria that are applied consistently across situations, and cases. Third, we've seen that it is misleading to present international justice as an obstacle to peace deals. Many conflicts can be mitigated through smart use of prosecutorial discretion, such as proper timing of charges and indictments or selection of cases. The question is mostly not whether piece of criminal accountability are pursued, but rather when and how.
