Thematic Prosecution Doctrine as a Factor in the Gravity Assessment at the International Criminal Court

Selectivity at the International Criminal Court (Court/ICC) is unavoidable and inevitable. The Court is not able to investigate and prosecute all cases and situations fallen within its jurisdiction. The Court’s intervention is an exception to prosecution at the domestic level. The Prosecutor’s discretion in selecting situations and cases, however, is not unfettered. The gravity requirement plays a leading role in the ICC situation and case selection regime. In practice, the Prosecutor, based on her interpretation of the gravity notion, has prioritized the prosecution of crimes against culture property and children and sexual crimes over other ICC-identified crimes. This article inquiries about the reason behind such a prioritization, and examines its consistency with the ICC’s constituent objectives. Studying prosecutorial policies and practices directs to the thematic prosecution doctrine. This doctrine orients prosecution around some criminal themes that are often untouched at the domestic level. Because of being under-prosecuted, the victims of these crimes need special attention and protection. From this perspective, that is consistent with the expressive mandates of the court, the prosecutor targets those themes that suffer a thicker culture of impunity.