Prosecutorial Policy at the International Criminal Court and the Role of Reconciliation

Abstract

The paper will advance the speaker's doctoral proposal, which focuses on a critical examination of the ICC's prosecutorial discretion and the desirability of political reconciliation forming a part of this discretion. The paper will be based on the preliminary chapter of the research which provides the groundwork in establishing why the ICC through its prosecutorial policy may normatively be better shaped by reconciliation. The research thus attempts to theoretically frame the ICC as a normative actor that acts as an instrument within a broad transitional justice momentum, rather than an isolated, formal and legalistic actor providing trial justice alone. The paper will introduce features of prosecutorial discretion at the ICC including a critical review of Article 53(1) and 53(2) which includes the broad expression the "interests of justice." It will critically discuss how the discretion is currently poorly shaped by the inadequate rhetorical aspirations of the ICC namely deterrence and retribution and through the equally opaque ambitions of the Office of the Prosecutor itself. Given this critique and using evidence from the ICC's record the paper justifies the theoretical space for the OTP to expressly concern itself with reconciliation. The paper will provoke conversation as to the desirable extent an effective ICC prosecution strategy can address such agendas often manifested through amnesties, peace agreements and truth and reconciliation commissions