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Thursday, December 20, 2012

Guest Post: Springing the Trap: Prosecutorial Discretion Beyond Politics and Law

By Jens Iverson, Leiden University

I’d like to thank Dov Jacobs for allowing me to post on his excellent blog.

This essay is, at heart, a plea for a more open discussion of the tradeoffs inherent in pursuing international criminal justice, particularly with a limited budget.  Too much time is wasted in unsubstantiated allegations of politicization and unsatisfying invocations of simply following the evidence.  We are stuck in a rhetorical trap that ill-serves the goals of making and explaining our value choices and critiques.

I’ve noticed a pattern in responses from the Office of the Prosecutor (OTP) of the International Criminal Court.  For example, when the particular charges chosen by the OTP in the first trial are questioned, the OTP will emphasize that they follow the lead of the evidence.  When members of only one side of a conflict are charged, the OTP will argue that to charge leaders from both sides, when that is not where the evidence leads, would be a political choice – and they must avoid politicization.  When the question of whether there is a tension between prosecution and peace arises, OTP spokesmen will typically point to the UN Security Council’s power to pause investigation and prosecution, indicating that political choices should be made by the Security Council, not the OTP.  When it’s pointed out that every situation country is in Africa, the response is much the same as to the question about refusing to “balance” prosecutions on both sides of a conflict – the Prosecution will not “balance” their work by opening an investigation elsewhere if that is not where the evidence leads.  The OTP will not be politicized.  It will follow the law.

I am sympathetic with the OTP’s rhetorical approach on the issue of politicization.  This post will not follow the common “critical” approach in which, in the name of truth-telling, the hidden politics of a seemingly apolitical framework (such as the universality of human rights or the rule of law) are cleverly revealed.  While I hope the discourse regarding the choices of the OTP changes, if anything, this post is “anti-critical” – rather than seek to expand the realm of politics to cover the entire field, I suggest that it would be more helpful in the Pragmatic sense, more human, and perhaps more honest, to keep both politics and law in their respective corners when possible and instead admit other explanations and criteria for the OTP’s actions.  It may seem flippant to compare the weighty matters of international criminal prosecution to, for example, performance art, but I am not trying to be flip.  It may seem overly grand to compare the selection of criminal charges to the choices different cultures make over history, but again, I am trying to be helpful, not grandiose. 

What is needed, I suggest, is a conversation where those interested in the OTP’s decisions can discuss them without falling into an artificial dichotomy where everything is either political or legal, with no room for additional criteria to be considered or applied.