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The hidden discretionary capacity of the ICC prosecutor: revisiting the analysis of legal and relative gravity

ABSTRACT Under the complex circumstances in which the International Criminal Court (ICC) operates, the role of its prosecutor has been challenging. The ICC prosecutor cannot pursue all situations for investigation, and cases for prosecution. She has to be selective. The exercise of discretion lies at the heart of such challenge. This study examines the scope of discretion and the way the Prosecutor has exercised it. It will suggest that there has been a tendency to overlook the necessity of distinguishing between various senses of discretion open to the prosecutor to exercise. In exploring the scope of discretion, the thesis will argue that there is wider range of discretion with different senses, available to the Prosecutor and that has been exercised by her, when applying legal thresholds. In assessing these legal thresholds, the focus will be on ‘sufficient gravity’. The thesis refers to this discourse as legal interpretative discretion. This is to be distinguished from prosecutorial discretion, which is a different concept and allows decision-makers to consider extra-legal considerations, as the case with the term ‘interests of justice’. An implication of the interpretation of the terms like ‘sufficient gravity’, is that the prosecutor can appear to possess almost unlimited power.