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Reflections on the ICC Prosecutor’s Recent “Selection Decisions”

Taking the starting point in an assessment of three major “selection decisions” made by the ICC Prosecutor in the situation in Mali, this article provides for a discussion of the key challenges relating to explaining how the ICC Prosecutor undertakes its “selection decisions”. First, the article explores the Prosecutor’s justifications for acting positively on Mali’s self-referral to the ICC. Second, it examines how the Prosecutor justifies that some crimes, but not others, will be subject to further investigation. Third, it provides for a discussion of how the Prosecutor selects suspects for further investigation. These three “selection decisions” are examined in light of the governing law and policies as well as the Prosecutor’s earlier practice and the scholarly debate. Some of the broader legitimacy challenges facing the Court are also discussed. In contrast to what the Prosecutor suggests, the article concludes that the Office of the Prosecutor does appear to treat self-referrals as a special category of cases where different standards apply. The article also concludes that it is doubtful that the gravity concept provides a clear framework for making “selection decisions”.