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Part III Prosecutorial Policy and Practice, 16 Selecting Situations and Cases

William A. Schabas OC MRIA

From: The Law and Practice of the International Criminal Court

Edited By: Carsten Stahn

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 05 October 2023

International humanitarian law — Gross violations — International crimes — Prosecutors — UN Charter

This chapter analyses selection and charging choices from an observer’s perspective. It re-visits the coherence and transparency of prosecutorial choices and charging practice, based on an analysis of ICC choices, criteria (e.g. ‘gravity’), and methods. It argues that existing practice has made the ICC vulnerable to criticisms of ‘selective justice’ and politicization, for example in the decisions reached with respect to Palestine and Iraq. It claims that further attention needs to be given to the inconsistency in the Prosecutor’s position, whereby selection of a situation is more or less mandatory once the objective criteria are met yet selection of cases is not. It notes that in reality, a great deal of discretion is involved in the selection both of situations and of cases.

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