A Situational Approach to Prosecutorial Strategy at the International Criminal Court

The International Criminal Court (ICC) was established to help end impunity for war crimes, crimes against humanity, and genocide. However, the collapse of the ICC’s prosecution of President Uhuru Kenyatta of Kenya – its highest profile case to date – amplified concerns that the Office of the Prosecutor (OTP) has been seriously hamstrung because of limited resources, political constraints, and inadequate investigative tools. The emerging consensus of scholars and practitioners is that the ICC must change its prosecutorial strategies by encouraging states to undertake domestic prosecutions of atrocity crimes and, where states fail to act, using comprehensive investigations and a broader approach to prosecutions. This Article challenges the emerging conventional wisdom and offers a counter-intuitive solution. It suggests ways to square the ICC’s global mandate with an understanding of its limited capacity by rejecting any single approach and adopting a more situational framework. This situational strategy includes simultaneously encouraging domestic prosecutions in one country while bringing cases directly to the ICC in another; conducting focused or comprehensive investigations depending on the situation; and prosecuting only senior leaders in some cases and lower-level criminals in others. This Article considers the structural constraints on the ICC, examines the historical experience of prior international criminal tribunals, offers a multipronged theoretical taxonomy to guide the practical implementation of situational prosecutorial strategies, and recommends situations in which each strategy could be invoked. Overall, this Article argues that there is no overarching one-size-fits-all approach to prosecutorial strategy that is likely to advance the court’s values and goals. Instead, the OTP will need to broaden as well as narrow its mandate in order to live up to its promise.