True-Frost: Weapons of the Weak: The Prosecutor of the ICC's Power to Engage the UN Security Council

Cora True-Frost (Syracuse Univ. - Law) has posted Weapons of the Weak: The Prosecutor of the ICC's Power to Engage the UN Security Council (Florida State University Law Review, forthcoming). Here's the abstract:

Ours is a time of both simmering conflict and critical reflection on prosecutorial discretion. The Rome Statute creates an overlap between the mandate of the UN Security Council and the International Criminal Court (ICC) to address these simmering conflicts. Indeed, thanks to the Rome Statute, prosecutorial discretion is now central to responses to mass atrocity and threats to international peace and security. Yet the UN Security Council has unparalleled power in the international sphere, and the independent ICC Prosecutor has relatively less power to manage the ICC’s Rome Statute-created relationship with the UN Security Council. This relationship matters, however, as it affects global perceptions of the ICC’s legitimacy and effectiveness. Following my recent treatment of the relationship between the UN Security Council and the ICC Prosecutor in The First Global Prosecutor, this Article argues that the current ICC Prosecutor should use her discretion to decline to prosecute future UN Security Council referrals. Two significant but little-noticed recent ICC developments support this argument. The July 2015 Prosecutor’s Strategic Plan for 2016-2018 indicates a shift in the focus of the Office; it will concentrate on those cases it can successfully prosecute rather than attempting to respond quickly and rush into prosecutions. In December 2014, ICC Prosecutor Bensouda proclaimed that she would suspend the ten-year-long investigation and outstanding warrant against Sudan’s President Al-Bashir. President Al-Bashir understandably greeted the news triumphantly, saying that the ICC had “failed” in its mission. The Prosecutor was arguably in fact diplomatically telling the Council that she would no longer do its bidding. Using Professor Yuval Shany’s multi-factorial conceptual framework for the effectiveness of international tribunals, the Article analyzes various positive and negative effects on the ICC of the relationship with the UN Security Council. The Article thus fills a gap in the existing literature about prosecutorial discretion. Few scholars writing about prosecutorial discretion have focused on the question of how the ICC Prosecutor could use her discretion to more effectively manage the critical relationship between the ICC and the Security Council. This Article is particularly important as scholars and practitioners at both the domestic and international levels seek to improve the international and domestic response to lingering international conflicts, and to address the many challenges the ICC presently faces. A preliminary implication of the argument that the ICC Prosecutor should say no to the Council in the case of a referral is that seats of authority in the international sphere are increasingly pluralistic. Increasing fragmentation opens space both for contestation of authority and specialization, and opens the possibility of multiple seats of legitimacy. This may serve as a corrective to the understanding that the UN Charter is the core constitutional document of an international system, and the UN Security Council, with its power to bind Member States, sits at the apex of this system.