The Office of the Prosecutor at the International Criminal Court: Towards Prevention through Transitional Justice

This paper highlights the connection between the International Criminal Court’s Office of the Prosecutor and the field of transitional justice. This overlapping relationship is ultimately based on the common ambition of preventing international crimes in conflict-affected states. The paper’s specific focus is on how to improve the OTP’s existing language and discourse through an accompanying transitional justice vocabulary, in order to help enhance the prevention mission. It firstly appraises how that mission is translated into the OTP’s institutional objective to maximise its preventive impact, and identifies how it is currently beset with complexities that have not been adequately addressed. It then considers the current conceptual attraction to legalism within OTP language, declarations and pronouncements, and explores the limitations and negative consequences. Legalism is critically a theoretical dogma ill-equipped at capturing the social and political complexities of domestic societies shaped by conflict and post-conflict momentums. Given this, any purported preventive impact of the OTP is significantly reduced. In light of the prevailing arguments, conceptual and substantive evidence will justify the OTP as a transitional justice actor in those situations shaped by and demanding it. Therefore the paper makes the case for the OTP to adopt an accompanying transitional justice focus within its language and discourse. Through adopting a multifaceted and reasoned case for its prosecution decision-making in conflict-affected situations, the OTP could better dovetail itself into inclusive domestic transitional justice strategies. This would allow a more local and domestic contestation of ICC prosecutions including a fuller assessment as to how and why they contribute to a range of transitional reforms on the ground. In so doing the OTP could fully integrate and join-up its justice mandate with domestic transitional agendas, and ultimately help establish the social and political forces necessary to prevent future crimes.