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.

  The unique horrors of forcing children to kill, the particular structural threat of election violence, the specific values threatened by forced marriage – choosing to prioritize addressing one of these at the expense of another must unfortunately be done by the decision makers at the OTP, and yet cannot be fully evaluated either through a legal or political framework.  Even combined, the legal and political frameworks merely provide a needlessly binary worldview.  This dichotomy places the OTP in a position of unnecessary opacity with respect to explaining their choices.  They cannot discuss non-legal values easily without being subject to the critique of politicization.  So, functionally, they are quiet.

The Office of the Prosecutor (OTP) of the International Criminal Court is caught in a rhetorical trap.  No one realistically expects that it behaves as a creature of pure logic, able to rationalize all choices into the single logical choice made evident by the evidence.  Thus, when a choice is made, it is easy to paint that choice not based on the application of the law to the facts, what might be described as a professional choice or a legal choice, but rather a political choice.  If it cannot be wholly made clear by law, and there are only two explanations, then the political explanation is the only remaining option.

It should be evident to any observer that the OTP has to make choices.  It is neither omniscient nor omnipotent.  Any choice it makes is liable to be attacked as a political choice, by academics, activists, and defence counsel.  (Chambers largely limits itself to pointing out errors of law and professionalism.)  The OTP has done its best to make clear that the Office has not been politicized, but it cannot convincingly explain its actions merely with a wave at the law, or the evidence, and an invocation of gravity, without anything further.

It is perhaps helpful to think more about what we mean by such terms as “political,” “legal,” and “prosecutorial discretion.”  One can, of course define political and legal in the negative, where political is the non-legal and the legal is the non-political.  This is implied by the pattern of responses from the OTP, and often from the statements of their detractors.  Indeed, there is a grand tradition in law and political science matching these two, the recounting of which is beyond the scope of this post.  (Pace, Grotius, Gentili, Austin, Lauterpacht, Morgenthau, Kennan, Schmitt, Hart, etc.) 

What positive definitions can be proffered?  Positively defining “law” is perhaps easier in the context of evaluating the actions of the OTP with reference to the legal texts that created and govern the OTP, including the Rome Statute, the Rules of Procedure and Evidence, and Regulations of the Court.  Positively defining “politics” is of course fraught, with many wanting to define it very broadly, but I think it might be helpful in this context to tie it to the term "politicization," with a focus on power relations between humans and groups of humans, particularly with respect to gaining and keeping governmental power.  The issue of politics as power relations is particularly heated in the context of armed conflict, and indeed has haunted international criminal law in the wake of armed conflict.  When Justice Robert Jackson famously described the International Military Tribunal as “one of the most significant tributes that Power has ever paid to Reason,” it spoke not only to pride in the law, but the concern over victor’s justice as a particular politicization of law that lies at the nexus of international criminal law and international humanitarian law. 

The tension between the two frameworks of law and politics is a real one, and virtually any choice by the OTP can usefully be analyzed both in terms of its relation to specific legal texts and its effects in power relations.  But the analysis need not, and should not, stop there.  All I am suggesting here is a richer discussion, one that may acknowledge the legal limitations on the OTP, that recognizes the effects upon power relations, but that also recognizes that the Prosecutor may choose within the legal limits of their discretion not merely or always to further a legal theory or to advance the power of one group over another, but also to express sets of human values which are reflected in law and politics but are not wholly legal or political. 

Charging an accused for recruitment of child soldiers but not for gender or sexual based violence despite evidence of both, to take a notorious example, can be thought of not only as a legal or political choice, but also as a performance choice.  The OTP can be praised for delivering a message with special emphasis (given the simple charge and as it happens, conviction) that recruitment of child soldiers is wrong and may have repercussions for the perpetrator.  The OTP can be criticized by implicitly sending a message that gender and sexual based violence is not important enough to charge even when it would not necessarily involve additional accused or evidence.  Either of these statements has legal and political ramifications, but they need not be, at their core, legal or political.  Regardless of one’s opinion on the choice, the conversation is enriched by consciously avoiding unnecessary simplification into a political-legal dichotomy. 

Similarly, should the Prosecutor decide she will not proceed on an investigation based on the authority granted by UN Security Council referral specifically because the UN Security Council failed to provide the necessary funding for such an investigation, that decision would be an example of prosecutorial discretion not wholly determined or explainable by law or politics.  Such a decision would have political and legal effects, but is not fundamentally political or legal in nature.  More fundamentally, such an exercise of discretion goes to a clash of values that can exist between, for example, pursuing accountability for specific alleged crimes and building a sustainable and responsible relationship between institutions.

This year, there has been a global outbreak of conferences on the occasion of the 10^th “birthday” of the International Criminal Court.  I’ve presented at and attended my share.  The topics of the politicization of the OTP have been dominant in many panels.  At these and other conferences, including a recent conference on the Politics of Justice (or the Politics of Law as Martti Koskenniemi insisted in his keynote the conference should have been called, following his 1990 article The Politics of International Law) there is a painful disconnect between representatives of and apologists for the OTP and the OTP’s critics.  The OTP, as well as its critics, are caught in the same rhetorical trap.

In order for these panels to be less painful, for the OTP to use its discretion in the best possible manner, and for international criminal law to best address the terrible issues necessarily in its portfolio, we must have a richer, franker discussion over what to do with limited resources.  Discussing directly the implication that addressing crimes in Kenya, Côte d’Ivoire, and Libya may mean that crimes in the Democratic Republic of the Congo may go uninvestigated by the OTP, and doing so without unfounded allegations of politicization, may not only promote the values behind each of the options, enrich our understanding of them, and help us come to better decisions, they may ultimately result in greater support and financial backing for the project of international criminal law in general. 

Then again, it may not.  Discussing these tradeoffs may not, for example, motivate states to properly fund the ICC – maybe nothing will.  There will certainly be disagreement and lack of consensus.  There is no single value to maximize, no single criterion to satisfy.  But that is where the conversation should begin, not end.

Isaiah Berlin stated in his 1988 address The Pursuit of the Ideal, “[C]ollisions of values are of the essence of what they are and what we are.”  He was addressing such grand issues as the different choices made by cultures over history.  I’m describing an argument over a charge sheet.  But the principle holds true.  We should directly confront the collisions of values inherent in the use of prosecutorial discretion.  We may not discover anything as grand as who we are, but it’s still a better option than reflexively falling back into further fruitless rounds of allegations of politicization on one side and defensive invocations of the law and the evidence on the other.  By addressing the collision of values beyond law and politics, we will get closer to the heart of what we, as international criminal lawyers, think we are doing.