Fairness, Legitimacy, and Selection Decisions in International Criminal Law

By Hafetz, Jonathan | Vanderbilt Journal of Transnational Law, November 2017 | Go to article overview

Fairness, Legitimacy, and Selection Decisions in International Criminal Law


Hafetz, Jonathan, Vanderbilt Journal of Transnational Law


                   TABLE OF CONTENTS  I.    INTRODUCTION                                  1134 II.   CRITICISMS OF SELECTION DECISIONS IN       INTERNATIONAL CRIMINAL LAW                    1137 III.  SELECTIVITY, FAIRNESS, AND LEGITIMACY         1149 IV.   INSIGHTS FROM NATIONAL CRIMINAL JUSTICE       1152 V.    RETHINKING APPROACHES TO SELECTION DECISIONS       IN ICL                                        1160       A. Approaches to Increasing the Legitimacy          of Selection Decisions                     1160       B. Incorporating Distributive Considerations          into Selection Decisions                   1165 VI.   CONCLUSION                                    1170 

I. INTRODUCTION

The selection of situations and individuals for prosecution remains one of the most difficult challenges facing international criminal justice. In other areas, international criminal law (ICL) has developed substantially since its rebirth more than two decades ago with the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). Renewed efforts to prosecute mass atrocities have produced a growing body of international criminal procedure that, notwithstanding its shortcomings, is increasingly attentive to human rights norms designed to protect the accused. (1) Yet, selection decisions remain a persistent concern, despite a growing awareness of the risks to the fairness and legitimacy of ICL (2) and, particularly, to the International Criminal Court (ICC). (3)

A key achievement of the Rome Statute, which established the ICC, (4) was the creation of an independent prosecutor with the authority to initiate investigations. Supporters viewed an independent prosecutor as critical to establishing an effective and independent international court by facilitating prosecutions based on considerations of law and justice rather than self-interest or the power and priorities of individual states. (5) Under the Rome Statute, the ICC Prosecutor can initiate cases without a referral from a State Party or the UN Security Council. (6) Yet, prosecutorial independence has proven a double-edged sword, raising expectations that the ICC has been unable to fulfill. The territorial and nationality restrictions on the ICC's jurisdiction under the Rome Statute make it difficult to prosecute individuals from non-state parties, particularly individuals from the three permanent members of the UN Security Council--China, Russia, and the United States--that have refused to join the court. The ICC not only lacks jurisdiction over crimes committed within the territory or by nationals of non-member states, but any of these three countries can block the alternative path to ICC jurisdiction of Security Council referral under Chapter VII through exercise of its respective veto power. (7)

In practice, the ICC's docket has deepened the perception that the selection of situations and cases for investigation and prosecution remains heavily influenced by structural, strategic, and political considerations beyond strict formal assessments of criminal responsibility. Critics cite the ICC's docket as evidence of various forms of bias in the choice of situations, from protecting major powers and their allies from criminal responsibility to focusing disproportionately on particular regions (especially countries in Africa). (8) They also point to the ICC's past failures to investigate and prosecute all sides within a given conflict. (9)

The ICC's seeming powerlessness to address these concerns, especially given the continued UN Security Council influence over selection decisions that is built in to the ICC's design, has limited the ICC's effectiveness and colored perceptions of its fairness and legitimacy. (10) In Africa, the ICC faces growing resistance to its authority and strains in its relationship with the African Union. (11) Notably, South Africa, Burundi, and Gambia recently announced their intention to withdraw from the ICC. …

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