TABLE OF CONTENTS I. INTRODUCTION 1134 II. CRITICISMS OF SELECTION DECISIONS IN INTERNATIONAL CRIMINAL LAW 1137 III. SELECTIVITY, FAIRNESS, AND LEGITIMACY 1149 IV. INSIGHTS FROM NATIONAL CRIMINAL JUSTICE 1152 V. RETHINKING APPROACHES TO SELECTION DECISIONS IN ICL 1160 A. Approaches to Increasing the Legitimacy of Selection Decisions 1160 B. Incorporating Distributive Considerations into Selection Decisions 1165 VI. CONCLUSION 1170 I. INTRODUCTION
The selection of situations and individuals for prosecution remains one of the most difficult challenges facing international criminal justice. In other areas, international criminal law (ICL) has developed substantially since its rebirth more than two decades ago with the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). Renewed efforts to prosecute mass atrocities have produced a growing body of international criminal procedure that, notwithstanding its shortcomings, is increasingly attentive to human rights norms designed to protect the accused. (1) Yet, selection decisions remain a persistent concern, despite a growing awareness of the risks to the fairness and legitimacy of ICL (2) and, particularly, to the International Criminal Court (ICC). (3)
A key achievement of the Rome Statute, which established the ICC, (4) was the creation of an independent prosecutor with the authority to initiate investigations. Supporters viewed an independent prosecutor as critical to establishing an effective and independent international court by facilitating prosecutions based on considerations of law and justice rather than self-interest or the power and priorities of individual states. (5) Under the Rome Statute, the ICC Prosecutor can initiate cases without a referral from a State Party or the UN Security Council. (6) Yet, prosecutorial independence has proven a double-edged sword, raising expectations that the ICC has been unable to fulfill. The territorial and nationality restrictions on the ICC's jurisdiction under the Rome Statute make it difficult to prosecute individuals from non-state parties, particularly individuals from the three permanent members of the UN Security Council--China, Russia, and the United States--that have refused to join the court. The ICC not only lacks jurisdiction over crimes committed within the territory or by nationals of non-member states, but any of these three countries can block the alternative path to ICC jurisdiction of Security Council referral under Chapter VII through exercise of its respective veto power. (7)
In practice, the ICC's docket has deepened the perception that the selection of situations and cases for investigation and prosecution remains heavily influenced by structural, strategic, and political considerations beyond strict formal assessments of criminal responsibility. Critics cite the ICC's docket as evidence of various forms of bias in the choice of situations, from protecting major powers and their allies from criminal responsibility to focusing disproportionately on particular regions (especially countries in Africa). (8) They also point to the ICC's past failures to investigate and prosecute all sides within a given conflict. (9)
The ICC's seeming powerlessness to address these concerns, especially given the continued UN Security Council influence over selection decisions that is built in to the ICC's design, has limited the ICC's effectiveness and colored perceptions of its fairness and legitimacy. (10) In Africa, the ICC faces growing resistance to its authority and strains in its relationship with the African Union. (11) Notably, South Africa, Burundi, and Gambia recently announced their intention to withdraw from the ICC. (12) South Africa subsequently revoked its decision to withdraw from the Court, citing a ruling by a South African court declaring the withdrawal unconstitutional and invalid, and Gambia similarly reversed its decision to withdraw. (13) Yet, such signs of resistance, particularly by powerful states like South Africa, has raised fears of a coordinated exodus by African leaders that could undermine the ICC's credibility and survival. (14)
Commentators have thus properly focused on selectivity as one of the most important challenges confronting the ICC and as a recurring concern for international criminal tribunals more generally. This Article seeks to unpack the concept of fairness to explain how, broadly understood, it encompasses not only familiar criminal law concerns surrounding due process protections and properly circumscribed doctrines of criminal responsibility, but also choices about which situations and cases to investigate and prosecute. The Article's main focus is on how selection decisions affect the perceived fairness and, in turn, legitimacy of ICL's implementation by international and hybrid tribunals. Ultimately, the Article argues, even the most robust procedural safeguards and carefully calibrated doctrines of individual criminal responsbility cannot entrench a court's legitimacy if broader selectivity considerations remain unaddressed. The Article maintains that addressing ICL's selectivity challenge is an important component of fulfilling the twin aims of accountability and fairness central to ICL since Nuremberg.
Part I describes the concerns underlying criticisms of selection decisions by international tribunals. Part II discusses how these decisions can impact the fairness of international tribunals and, in turn, their legitimacy. Part III examines studies of fairness and legitimacy in domestic contexts, particularly those based on theories of procedural and distributive justice, and then describes their implications for ICL. Part IV explores several possibilities for greater incorporation of distributive considerations in selection decisions by the ICC and other international tribunals. It concludes that these courts should make more deliberate use of selection decisions to express the principle that international criminal responsibility applies to all individuals and that no person is above the law.
CRITICISMS OF SELECTION DECISIONS IN INTERNATIONAL CRIMINAL LAW
International criminal tribunals historically have faced criticism for their selection decisions. The problem is particularly acute at the ICC, which raised expectations of a more depoliticized application of ICL through the creation of an independent prosecutor, but which confronts both design limitations and practical obstacles that make those expectations difficult to achieve. As a result, the ICC has increased skepticism about the capacity of international criminal justice mechanisms to fulfill the aspiration of equal application of the law.
In the past, selectivity concerns have had several, overlapping dimensions. They have traditionally included: victor's justice (the claim that the winning side of a conflict is not prosecuted); the insulation of officials of powerful nations and their allies from prosecution; the shielding of high-level officials while only less culpable, lower-level officials are held criminally responsible; and a disproportionate focus on particular countries and regions.
Claims of victor's justice date to the post-World War II trials at Nuremberg and Tokyo. (15) At Nuremberg, the International Military Tribunal (IMT) expressly limited prosecutions to the defeated European Axis powers. (16) Potential Allied war crimes, such as the bombing of Dresden, were thus excluded from the tribunal's jurisdiction. (17) An overarching normative commitment to due process at Nuremberg, where three of the original twenty-four defendants were acquitted, helped soften criticisms that the results were predetermined. The International Military Tribunal for the Far East (IMTFE), based in Tokyo, considered only war crimes committed by the Japanese. The IMTFE was criticized for its exclusive focus on the vanquished as well as for its procedural deficiencies and retroactive imposition of criminal responsibililty. (18) These critiques were captured in Justice Rahadbinod Pal's scathing dissent, which characterized the tribunal as essentially a political affair "cloaked by a juridical appearance" and an exercise in "formalized vengeance." (19)
Subsequent international tribunals have shown greater sensitivity to the importance of prosecuting international crimes regardless of the nationality of the perpetrator. The statutes for the ICTY and ICTR are neutral on their face as to the identity of the perpetrator, referring instead to crimes committed in a particular territory during a specified time period. (20) Moreover, the judges for these two ad hoc tribunals had no direct connection to the region that suffered the atrocities, in contrast to Nuremberg, where the tribunal was composed of judges from the winning side. (21) The ICTY brought war crimes cases against ethnic Serbs, Muslims, and Croats, including Croatian generals. (22) In one important case, for example, the ICTY prosecuted Bosnian Muslim and Croat officials for their respective roles in crimes committed at a prison camp in Bosnia where Bosnian Serbs were grossly mistreated. (23) Although the ICTY arguably focused disproportionately on crimes committed by Serb forces, (24) it brought "a semblance of balance to its indictments and prosecutions," (25) and its greater focus on Serb crimes approximated criminal responsibility on the ground, as Serb forces committed the vast majority of crimes. (26)
Proceedings at the ICTY raised a distinct set of concerns about the insulation of major powers from prosecution. Following NATO's bombing of Kosovo as part of Operation Allied Force, a group of law professors filed a war crimes complaint with the ICTY against American and Western European political and military leaders and pressed the Prosecutor to bring war crimes charges, including for the killing of civilians. (27) The ICTY Prosecutor appointed an...