Ohlin: Peace, Security, and Prosecutorial Discretion

Jens David Ohlin (Cornell Univ. - Law) has posted Peace, Security, and Prosecutorial Discretion (in The Emerging Practice of the International Criminal Court, C. Stahn & G. Sluiter, eds., forthcoming). Here's the abstract:

Although the problem of prosecutorial discretion at the International Criminal Court has received some critical attention, the current scholarship has insufficiently addressed the complex relationship between prosecutorial discretion in individual criminal cases and the Security Council's Chapter VII authority at the collective level. The Office of the Prosecutor apparently believes that it has broad authority to initiate an independent review even after a Security Council referral, though the Office voluntarily recognizes that matters of peace are better left to other institutions within public international law. By making a distinction between general and specific discretion, this article develops the argument that the ICC Prosecutor's discretion is in fact greatly constrained by Security Council referrals, despite the fact that the Rome Statute purports to give the prosecutor discretion to make decisions based on the "interests of justice". If the phrase "the interests of justice" is interpreted to incorporate matters of justice at the collective level, then the Rome Statute's putative grant of discretion to the ICC Prosecutor conflicts with the basic structure of international legal institutions.