Selectivity in the Prosecution of International Crimes: Strategic Necessity or Threat to the Court’s Impartiality

Abstract

Criminal prosecution before the International Criminal Court, unlike domestic criminal justice systems, operates within a context characterized by political fragmentation, the absence of centralized enforcement mechanisms, and a profound reliance on state cooperation. Within such a structure, the prosecutorial process cannot be understood merely as a legal act; rather, it constitutes a complex set of strategic decisions that carry extensive legal, normative, political, and symbolic consequences. Adopting an analytical–institutional approach, this article argues that criminal prosecution at the International Criminal Court is governed by a multilayered strategic framework composed of prosecutorial discretion as enshrined in the Rome Statute, institutional strategic planning, thematic policy documents, and operational choices throughout the prosecution cycle. The findings of the study demonstrate that prosecutorial discretion, as the structural core of this framework, functions not only as an instrument of law enforcement but also as the principal mechanism for the construction of meaning within international criminal law. Strategic decisions concerning the selection of situations, the gravity of crimes, prioritization of those most responsible, and the implementation of the principle of complementarity play a decisive role in shaping legal narratives of mass violence and establishing normative hierarchies among international crimes. At the same time, the unavoidable reliance on selectivity exposes the Court to significant challenges relating to legitimacy, transparency, and institutional coherence. By examining prosecutorial strategy at different stages of the prosecution cycle—from preliminary examinations to the closure of situations—the article demonstrates that the success or failure of the International Criminal Court depends less on the formal existence of legal rules and more on the coherence, rationality, and transparency of the strategic judgments exercised by the Office of the Prosecutor. Ultimately, it is concluded that prosecutorial strategy is not merely an ancillary managerial tool, but rather the normative engine of international criminal justice and a decisive factor in realizing—or undermining—the promise of ending impunity.