The International Criminal Court’s Selectivity and Procedural Justice

Abstract Prosecution selectivity is one of the most intractable dilemmas in international criminal justice. It is of little surprise, then, that the International Criminal Court’s (ICC) selection of cases has long been subject to critical debate. This article contributes to the literature by analysing the ICC’s selection procedure from the perspective of affected communities. Vis-à-vis this target audience, the article critiques the procedure’s effectiveness against a measure of perceived legitimacy. Using a Rawlsian model of imperfect procedural justice, the analysis explains the specific shortcomings of the Office of the Prosecutor’s (OTP) selection procedure in being sufficiently consistent, impartial and representative. In turn, this lack of procedural fairness may reduce the likelihood that the OTP selections are perceived as legitimate within affected communities. More broadly, the article argues that the OTP is unable to reach the ‘fairest’ possible prosecutorial decisions as to situations or cases — culminating in the conclusion that its selection procedure makes a limited (if any) contribution to the Court’s perceived legitimacy. The article triggers reflection on the Court’s relationship with target audiences and concludes by making practical recommendations directed at improving the OTP’s selection procedure.

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Expressing what? The stigmatization of the defendant and the ICC’s institutional interests in the Ongwen case

Leiden Journal of International Law ◽

10.1017/s0922156520000539 ◽

2020 ◽

pp. 1-23

Author(s):

Liana Georgieva Minkova

Keyword(s):

Criminal Justice ◽

International Criminal ◽

Northern Uganda ◽

International Criminal Justice ◽

Criminal Trials ◽

Operation Risk ◽

International Criminal Trials ◽

Empirical Contribution ◽

Selection Of

Abstract The potential of international criminal trials to express the wrongfulness of mass atrocities and instil norms of appropriate behaviour within communities has been subject to a lively theoretical debate. This article makes an important empirical contribution by examining the limitations to the expressivist aspiration of international criminal justice in the context of the message communicated by the International Criminal Court’s Office of the Prosecutor (ICC-OTP) in the Ongwen case. A detailed analysis of the selection of charges, modes of liability, and the overall presentation of the Prosecutor’s arguments at trial suggests that the ICC-OTP’s limited capabilities to apprehend suspects and its dependency on state co-operation risk the excessive stigmatization of the few defendants available for trial for the purpose of demonstrating the Court’s capability of prosecuting notorious criminals. As the only apprehended commander from the Lord’s Resistance Army (LRA), Dominic Ongwen has been presented by the ICC-OTP as the ‘cause’ of crimes committed in Northern Uganda without due regard for the degree of his alleged involvement in those crimes compared to other LRA commanders, the role of other actors in the conflict, or the significance of his own victimization as a child. Ongwen’s excessive stigmatization expressed the importance of the Ugandan investigation after a decade of showing no results. Yet, it also produced a simplistic narrative which failed to express the complexity of violence in Northern Uganda.

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Expertise in the Bench? The Dis-embeddedness of International Criminal Justice

The President on Trial ◽

10.1093/oso/9780198858621.003.0031 ◽

2020 ◽

pp. 241-250

Author(s):

Julien Seroussi

Keyword(s):

Criminal Justice ◽

International Criminal ◽

Sociological Theory ◽

International Criminal Justice ◽

Access To Information ◽

Pragmatic Approach ◽

Criminal Proceedings ◽

Legal Procedure ◽

Fact Finding ◽

Selection Of

This chapter discusses how contextualizing facts can alter judicial outcomes, arguing for the necessity of developing a sociological theory about the facts of a case in order to ascribe responsibility in a court. Judges in international courts have very sparse access to information when they have to judge foreign situations from abroad. Thus, judges elaborate what can be called ‘folk sociological theories’ (FST), which are sociological narratives that can provide them with a grasp of the situation and a guide for the selection of facts that can demonstrate responsibility or guilt in the accomplishment of crimes. The chapter applies FSTs to the Germain Katanga and Mathieu Ngudjolo cases, suggesting that they raise important conceptual implications for understanding the epistemological limitations of international criminal proceedings. It also considers the production of FSTs through a pragmatic approach, showing when FSTs successfully produce the irrelevance of facts in fact-finding processes, and when they fail the reality tests of legal procedure.

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The Crime Question

Doing Justice to History ◽

10.1093/oso/9780198846871.003.0004 ◽

2021 ◽

pp. 107-187

Author(s):

Barrie Sander

Keyword(s):

Criminal Justice ◽

International Criminal ◽

Institutional Context ◽

Historical Narratives ◽

International Criminal Justice ◽

Relative Importance ◽

Criminal Courts ◽

Judicial Decisions ◽

Definition Of ◽

Selection Of

This chapter examines the practices that have influenced the range and definition of crimes adjudicated within international criminal courts and the implications for the scope and content of the historical narratives constructed in their judgments. The chapter reveals how the range and definition of crimes have been shaped by different actors at particular junctures within international criminal justice processes, including the drafting of statutory frameworks, the selection of charges to include in indictments, and the interpretation of crime categories in judicial decisions and judgments. Crucially, the relative importance of these junctures and the relative influence of different actors have tended to vary depending on the institutional context in which struggles for control over the selection and meaning of categories of crime have been conducted. The chapter concludes by identifying forms of criminality that have consistently been marginalised within international criminal courts despite falling within their subject-matter jurisdiction.

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