Political Considerations in Prosecutorial Discretion at the International Criminal Court

Abstract

The International Criminal Court (icc) sits at the perfect crossroad of law and politics. As a primarily consent-based legal system, the icc is only effective to the extent that it has the political support from states who want to see it succeed in its mission to end impunity for the most serious crimes of concern to the international community. Despite this, the Prosecutor’s interpretation of the ‘interests of justice’ criterion limits the extent to which the Prosecutor can consider the political ramifications of their actions. This article argues that the Prosecutor has legal grounds to consider politics in their analysis of whether proceeding with an investigation or prosecution would not be in the ‘interests of justice’. This article also argues that soft power theory can be used to overcome arguments that politics should not be considered in the exercise of prosecutorial discretion, due to the consent-based nature of the icc regime.