The Problems with the Implementation of the Prosecutorial Discretion at the ICC

The International Criminal Court's (the ICC or the Court) status and its judicial practices have been controversial since its establishment in 2002. Critics argue that the Court is used by great powers as an instrument to achieve their political objectives and hence it has long lost its legitimacy. The ICC prosecutor has played a key role in aggravating these criticisms. The ICC's legitimacy is further endangered by the Prosecutor's situation and case selection process and the criteria that they have applied. This article argues that the ambiguity embedded in the admissibility conditions in the Rome Statute results in the critique that the ICC is partial, biased and selective. Even though the ICC Prosecutor has recently published various reports in order to make the admissibility conditions transparent, a detailed examination of these reports shows that these criteria are still far from being transparent. The cases analysed in this article manifest that there are different and contrasting understandings of the admissibility conditions even within the ICC itself. This article acknowledges the difficulties that the ICC Prosecutor faces. In order not to overwhelm the ICC with numerous applications, the Prosecutor has to reject some of them. Having admitted that, this article shows that the Prosecutor's practices regarding the admissibility conditions aggravate the criticisms against the ICC's legitimacy and objectivity. The examples in this article illustrate that the admissibility conditions were interpreted in a way which contrasts with the Rome Statute itself.