Introducing a fairness-based theory of prosecutorial legitimacy before the international criminal court

Abstract

The International Criminal Court became operative in 2002. The first prosecutor of the Court faced the enormous challenge of setting up a series of policies addressing at the same time the backlog of overriding expectations. His task was daunting, and his prosecutorial choices triggered a series of controversies among a variety of relevant audiences, while the concept of legitimacy appeared to become the panacea to the debate. The current contribution purports to achieve a twofold goal using a doctrinal, descriptive and normative angle: (i) to provide an alternative normative theory of the thorny principle of prosecutorial discretion and particularly of the interests of justice reference, based on the fairness aspect of legitimacy and (ii) to recommend an alternative to today's adopted prosecutorial policy with regard to the interests of justice reference in Article 53, emphasizing its long-term effect on the overall perception of the Court.