More Candour about Criteria: The Exercise of Discretion by the Prosecutor of the International Criminal Court

This article originally appeared in the March 2010 issue of the Journal of International Criminal Justice. James A. Goldston is executive director of the Open Society Justice Initiative.

In its short life, the International Criminal Court (ICC) has issued public warrants of arrest for 14 persons, launched two trials and provoked controversy across the globe. Much unease about the Court boils down to one issue: how should the prosecutor decide, among thousands of crimes and perpetrators within his jurisdiction, which ones to charge?

To date, considerable discussion about the ICC has taken place in an atmosphere of unreality ill-served to educate and inform. While critics paint a picture of justice as one-sided and politically determined, embattled defenders offer a pristine notion of "law in a vacuum" that, at its extreme, stretches credibility.

If the ICC is eventually to command sustained public support, we must move beyond platitudes in explaining the nuanced nature of the prosecutor's discretion: grounded in law and evidence, but, of necessity, taking into account broader considerations of institutional strategy and policy, while refraining from partisanship or bias.