Justice Without Politics: Prosecutorial Discretion and the International Criminal Court

The ICC Prosecutor\u27s own charging policies should be prepared to give way to the judgments of legitimate political actors in times of political transition when actual arrests are more likely and competing justice proposals pose a more troubling challenge to the ICC\u27s authority. In that scenario, I argue that the Prosecutor should encourage legitimate political actors to reach policy decisions that will command deference by the ICC. Such deference could take one or both of the following forms: (1) explicit deference to political actors, principally the U.N. Security Council acting under Chapter VII of the U.N. Charter, and (2) implied or constructive deference undertaken through a minimalist focus on only the most severe offenders of the most offensive and morally unambiguous crimes. To some extent these two options mirror the divide between the Court\u27s detractors and supporters, but the options are not mutually exclusive, and each, I believe, has the potential to bridge that divide. Although explicit deference may best engage the ICC in a productive international regime of transitional justice, the Court\u27s Prosecutor has publicly endorsed an approach that more closely follows the path of constructive deference. If so, this Article provides a framework for understanding that strategy and supplies it with a rationale--one based on unresolved policy dilemmas rather than mere resource constraints--that is superior to that which the ICC Prosecutor has publicly invoked