Fairness, Legitimacy, and Selection Decisions in International Criminal Law




The selection of situations and cases remains one of the most vexing challenges facing the International Criminal Court (ICC) and other international criminal tribunals. Since Nuremberg, international criminal law (ICL) has experienced significant progress in developing procedural safeguards designed to protect the fair trial rights of the accused. But it continues to lag in the fairness of its selection decisions as measured against the norm of equal application of law, whether in the disproportionate focus on certain regions (as with the ICC’s focus on Africa), the application of criminal responsibility only to one side of a conflict, or the continued insulation of major powers from international criminal responsibility.

Selection decisions are less within the control of international courts than the provision of fair trial safeguards to individual defendants. This Article argues that international criminal courts, and the ICC in particular, could nevertheless benefit from even marginal adjustments in this area. Specifically, the Article argues that international criminal courts should focus more on distributive considerations in choosing from among the numerous international crimes that can feasibly be pursued with the limited resources available. It argues that these courts should use selection decisions to express the norm that international criminal responsibility applies to all individuals as a means of enhancing their fairness and legitimacy.

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