The following piece was originally posted as part of a symposium at Opinio Juris on Jonathan Hafetz’s excellent new book, Punishing Atrocities through a Fair Trial: International Criminal Law from Nuremberg to the Age of Global Terrorism. Make sure to drop by OJ to check out some of the other posts this week!

Understanding selectivity is something of a holy grail among scholars of observers of international criminal justice. If we could just grasp the reasoning behind why courts go after some people in some places some of the time, we would be able to explain the law and politics of the international tribunals. What is obscured by a multitude of theories, conflicting accounts, and empirical evidence would suddenly become clear. The clouds would part, the mystery gone. It is no wonder, then, that the quest to understand selectivity has been as persistent as efforts to cement international criminal justice as a feature of global politics.

In his smart and thoughtful book, Jonathan Hafetz tackles this “thorniest” of issues and asks us to consider questions of how selectivity might relate to ideas of legitimacy and fairness in international criminal law. The primary target of his analysis is the International Criminal Court (ICC). Hafetz observes that the ongoing tensions between the ICC’s selection of situations to investigate and cases to prosecute have been intimately related to perceptions of the institution’s credibility:

Continued asymmetries in the selection of situations and cases – even if largely the product of a tribunal’s design and the practical obstacles it faces – will hinder the ICC and other international tribunals from satisfying broader conceptions of fairness rooted in the equal application of criminal responsibility under international law.

Only the most insincere advocate of international criminal justice would say that the selection of situations and cases before the ICC is justifiable or “fair”. It is not, and it has never been. Whether it be the overwhelming focus on African situations and cases, the asymmetrical selection of cases within those situations, or the reluctance to investigate and prosecute powerful global actors, selectivity – perhaps even more than the enforcement of warrants – has been the Achilles heel of ICC legitimacy. And to be clear: selectivity is not just a matter of institutional design or jurisdictional limitations. It is a matter of prosecutorial strategy and institutional prerogatives.

So, what then can be done?

Hafetz endorses an approach which emphasizes the “symbolic importance of prosecutions” and their expressive value. In other words, he stresses the importance of what the selection of certain situations and cases tell us, the stories they evoke about what is right, fair, and just. However, rather than just focusing on ‘popular crimes’ that resonate with global publics (such as the use of child soldiers or the destruction of cultural property as a war crime), Hafetz stresses that:

an expressive approach to selection decisions should also incorporate a dimension of distributive fairness, a path the ICC has thus far resisted. In particular, the ICC and other international criminal tribunals should seek to express the principle that no individual is above the law – both across and within situations – through their decisions to investigate and, where the evidence supports it, to prosecute. Even modest steps in this direction could contribute to an alternative narrative… and help counter the perception that international criminal justice merely tracks the preferences of the strong and their supporters.

Hafetz’s aspirational advice is worth taking. Crucially, however, he is not naïve about the difficulties that would follow from his recommendation for the ICC to challenge the idea that some are more equal before the law than others. He presciently discusses the Court’s preliminary examination into Afghanistan (the book was published months before the recent decision not to open an investigation into the situation in Afghanistan), arguing that “action by the ICC Prosecutor could enhance the Court’s overall reputation and legitimacy even if such action met with strong opposition and ultimately proved unsuccessful.” (emphasis mine). As I have argued elsewhere, it was wrong to assume that the Afghanistan investigation should only be opened if an ICC intervention could produce surrenders. What Hafetz and indeed other observers could not predict was that it would be the Judges, and not the Prosecutor, who would get cold feet.

Following a series of high-profile setbacks and in the wake of ICC judges choosing to thwart accountability for international crimes in Afghanistan, the biggest challenge for the Court is not simply where to investigate or who to prosecute. Its biggest challenge is to decide what story it wants to tell and to whom. As Hafetz’s work rightly points out, the ICC has a choice of whether or not to play into the widespread conviction that it cannot and will not aspire to be anything more than an institution that reiterates and reifies the crooked distribution of power in the world. If it decides that it is more than that and remains an aspirational court, then where it decides to open investigations and which perpetrators it decides to put on trial must fit that narrative.

John Berger once wrote that “[w]hen we read a story, we inhabit it.” If the ICC wants to do any more than tread water and survive, it must be willing to tell and inhabit a better story than what it has recounted to date.