A case selection independence framework for tracing historical interests’ manifestation in international criminal justice

Over the past two decades, international institutions have increasingly been established to prosecute international crimes, including: war crimes, crimes against humanity, genocide, other serious violations of international humanitarian law and, ostensibly, crimes against the peace (the crime of aggression). In this chapter I argue that the international system and the post-cold war global order critically shaped the trajectory of international criminal law enforcement in two ways. First, it enabled a contest over control of case selection primarily between powerful states and weak states, and, to a lesser extent, with actors seeking independent prosecution of core international crimes cases. Second, as a part of the weak v. powerful state contest, it preferred the prosecution of international humanitarian law violations (jus in bello) to prosecution of the crime of aggression (jus ad bellum). In order to identify these two emergent trends we must look beyond the legal instruments, referred to in the conference theme as the significant building blocks, and towards the interests of those actors that design them. By identifying the historical positions of states, one can identify the trajectory of international criminal justice, the behavior it enables and stigmatises, and the impact of shifting global power dynamics on its post-cold war re-emergence. I begin the chapter by surveying some of the leading theoretical approaches to identifying the contestation of realist state self-interest with normative advance of international crimes prosecution. I identify the gap in the literature that demands a consistent theoretical framework capturing the interface of these two often-competing forces across the international criminal justice landscape. I then introduce the key elements of case selection independence before examining examples of when and how case selection independence elements have been compromised. In doing so, I identify the historical origins of the contemporary international criminal justice framework: weak v powerful state competition over the prosecution of the waging of war or its conduct, and, over case (including situation) selection control.