The International Criminal Court’s Office of the prosecutor and reconciliation

Kotecha, Birju (2018) The International Criminal Court’s Office of the prosecutor and reconciliation. Doctoral thesis, Northumbria University.

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Abstract

Reconciliation is one of the most contested notions in transitional justice scholarship. Unsurprisingly, the contribution of international criminal justice to reconciliation has been the subject of considerable debate. Empirical evidence suggests there are reasons to be sceptical, but, international prosecutors have displayed little restraint in claiming that prosecutions can— and indeed do—contribute to reconciliation. The Rome Statute of the International Criminal Court, and the potential to gain legitimacy in divided societies suggest that the Court should be concerned by its effect on reconciliation. In this context, this study asks, how can the International Criminal Court’s Office of the Prosecutor (OTP) effectively contribute to reconciliation? The study focuses on the OTP’s most essential activity—its procedure of selecting situations and cases. Using a goal-based methodology, the study explains that the OTP requires the Court to be perceived as legitimate in affected communities. The Court’s perceived legitimacy is shaped by complex factors but, nonetheless, the OTP can take modest but crucial steps, towards improving perceptions. In this regard, I argue that the OTP’s effectiveness is limited by a lack of procedural justice—that account of justice that refers to perceptions about the fairness of procedure(s). In addition, I consider two further ways in which the OTP’s effectiveness is limited vis-à-vis the Court’s perceived legitimacy in affected communities. Penultimately, the study analyses selection rhetoric and argues that its existing reliance on legalism (i.e. rule-following) is unlikely to inspire such legitimacy. Finally, the study assesses the use of performance indicators, and explains that existing indicators do not adequately measure prosecution effectiveness in terms of perceived legitimacy. The study makes several recommendations that aim to boost the OTP’s effectiveness. Lastly, I conclude by reflecting on the broad implications of the study’s findings for the Court and its impact in those affected communities that are, ultimately, its raison d'être.

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