ABSTRACT
This chapter will provide an analysis of the concept of discretion and its relationship to the work of the prosecutor. This analysis will locate the issues concerning the prosecutor’s discretion within theoretical and political contexts. Fundamentally, the chapter aims at identifying a possible strong sense of discretion that the ICC prosecutor may exercise when applying legal criteria. When interpreting these legal thresholds, such a wide range of discretion would provide decision makers with an opportunity to come up with and select from different outcomes, justified in legal terms. This sort of practice amounts to the level of the exercise of discretion in its strong sense, in particular when there is no clear legal basis for the choice made to select a particular interpretation. The danger of this practice lies in the ability of decision makers to consider extra-legal factors or even political calculations to choose among different, but legally worthy possibilities. I call this sort of discretion legal interpretive discretion, where it might converge with prosecutorial discretion. It is only the latter sense of discretion where prosecutors can normally choose between legally worthy possibilities, and hence conventionally consider extra-legal factors, or arguably political effects/repercussions.
