New Essay at SSRN on the Role of the International Prosecutor

by Kevin Jon Heller

The (short and unassuming) essay is forthcoming in the Oxford Handbook of International Adjudication, which is being edited by Cesare Romano, Karen Alter, and Yuval Shany and should be published by OUP this year.  Here is the abstract:

The role of the international prosecutor is uniquely challenging. Unlike domestic prosecutors, who normally have the material resources to prosecute all of the serious crimes committed within their jurisdiction, international prosecutors are never able to prosecute more than a small fraction of the suspects who have committed an international crime. International prosecutors thus enjoy much greater discretion than their domestic counterparts. At the same time, international prosecutors operate in much more normatively complicated situations than domestic prosecutors: whereas most domestic crimes are generally perceived as deviant and unacceptable, international crimes are nearly always committed for ideological reasons that make their prosecution profoundly controversial. International prosecutors thus also tend to face far more intense political pressures – from states, the United Nations, NGOs, etc. – than their domestic counterparts.

Because international prosecution is both highly discretionary and politically charged, the legitimacy of international criminal justice depends, in large part, on the ability of tribunals to strike an appropriate balance between independence and accountability. This chapter explores the tension between the two. Section I addresses the Prosecutor’s structural independence — her independence from external political actors and other organs of the tribunal. Section II examines the Prosecutor’s functional independence – her practical ability to exercise her discretion free from undue limitation.

As always, comments and criticisms most welcome!

One Response

  1. Very interesting article.  My only comment is that given the substantial independence of the OTP, there should be a richer discussion (generally, not necessarily in this concise essay) of the choices available to the Prosecutor and the values behind those options – a discussion not limited to whether the OTP has been policiticized.  I explore this a bit in the following post, for what it’s worth:

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