Earlier this week, ICC Prosecutor Fatou Bensouda issued a “clarification” regarding communications received by her office with respect to atrocities allegedly committed by ISIS. The statement was unprecedented because, to the best of my knowledge, never before has the Prosecutor issued a formal public statement regarding a decision not to open a preliminary examination into a situation.
Although unprecedented in form, the statement marks the latest in a series of pronouncements by Bensouda that have demonstrated her willingness to use the symbolic power of her office to distribute responsibility and, at times, stigma to States and the Security Council for political limits that have impeded the work of the ICC.
For instance, in September 2014, the Prosecutor issued a striking statement regarding the ICC’s jurisdiction over Palestine. At that time, prior to Palestine lodging a new declaration with the ICC and acceding to the Rome Statute…
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