Prosecutorial Discretion as an Obstacle to Prosecution of United Nations Peacekeepers by the International Criminal Court: The Big Fish/Small Fish Debate and the Gravity Threshold

Abstract

United Nations (UN) peacekeepers have been accused of various offences (such as sexual exploitation and abuse, gun smuggling and trading, and gold or diamonds trading), which, under specific circumstances, could be even characterized either as war crimes or, more often, as crimes against humanity. The UN is not able to exercise criminal jurisdiction and in the majority of cases states have been either unable or unwilling to prosecute peacekeepers for criminal offences. Arguably, assuming that various jurisdictional criteria are satisfied, one potential forum for the prosecution of peacekeepers would be the International Criminal Court (ICC). However, aside from all other requirements, prosecutorial discretion could be one of the greatest obstacles to such prosecution. In the exercise of such discretion, the two issues of gravity and the ranking/level of a perpetrator influence prosecutorial decisions on whether or not to prosecute. This article will examine the application of these two matters of contention as demonstrated to date in prosecutorial policy and ICC decisions in the context of criminal conduct by peacekeepers, and how this application may affect chances of their prosecution in the ICC.