Regional Distribution as a Distinct Criterion in International Criminal Court Prosecution

AUP Professor Sharon Weill will be joined by Jiewuh Song, Assistant Professor in Political Science and International Relations at Seoul National University and currently a fellow at the Justitia Amplificata Centre at the University of Frankfurt, for a discussion of a recent paper on Regional Distribution as a Distinct Criterion in International Criminal Court Prosecution.

Paper Abstract

Practical constraints force the Office of the Prosecutor (“OTP”) of the International Criminal Court (“ICC”) to make difficult choices about the allocation of its prosecutorial resources. In doing so, it routinely faces the charge of regional bias, e.g., against African states. This paper argues that the OTP should adopt considerations of regional distribution as a distinct criterion in prosecutorial decision-making. Briefly, among situations and cases that are of sufficient gravity, the OTP would take the fact that a situation or case involves regions where it has relatively less current or previous activity as a consideration in favor of pursuing that situation or case. The proposal issues from a general account of the point of international law. The core thought is that we should understand the regional distribution criterion in terms of the need to fill enforcement gaps, including gaps of unfairly selective enforcement, in international criminal law. Enforcement gap-filling is an important purpose of the ICC and the conceptual foundation of our colloquial understanding of the ICC’s mandate to “end impunity.” Supported by this foundation, the regional distribution criterion would serve as a principled response to the charge of regional bias. As a principled response, it would avoid the worries that motivate the OTP’s current position of excluding regional considerations. After illustrating how the regional distribution criterion would interact with and modify the OTP’s current, gravity-centered policies, the paper goes on to situate its proposal within the broader project of international criminal justice.

About the speaker

Jiewuh Song is Assistant Professor in Political Science and International Relations at Seoul National University and currently a fellow at the Justitia Amplificata Centre at the University of Frankfurt. She holds a J.D. from Harvard Law School and a Ph.D. in Philosophy from Harvard University. Song works on issues at the intersection of law, philosophy, and politics, and has particular interests in the political philosophy of international law. Song is pursuing research on the justifiability of international law to the various actors subject to that law, at the levels both of general theorizing and of particular legal norms, e.g., in international human rights law or international criminal law. Song’s publications include “Pirates and Torturers: Universal Jurisdiction as Enforcement Gap-Filling,” Journal of Political Philosophy (2015), Vol. 23, pp. 471-490, “Justice and Cooperation,” Philosophical Analysis (2017), Vol. 38, pp. 263-290, and “Subsidiarity and Sovereignty,” Korean Journal of Legal Philosophy (2018), Vol. 21, pp. 383-416.