In this interesting piece over at Dov Jacob's blog Spreading the Jam, Iverson raises the idea of admitting explanations other than "law" or "politics" for why the OTP exercises its discretion in the ways that it does. He suggests that we move beyond the law/political dichotomy and admit of other rationales for Prosecutorial decision-making. He writes:
In order for these [debates between the OTP's representatives, apologists and critics] to be less painful, for the OTP to use its discretion in the best possible manner, and for international criminal law to best address the terrible issues necessarily in its portfolio, we must have a richer, franker discussion over what to do with limited resources. Discussing directly the implication that addressing crimes in Kenya, Côte d’Ivoire, and Libya may mean that crimes in the Democratic Republic of the Congo may go uninvestigated by the OTP, and doing so without unfounded allegations of politicization, may not only promote the values behind each of the options, enrich our understanding of them, and help us come to better decisions, they may ultimately result in greater support and financial backing for the project of international criminal law in general.
At the moment, he argues, the Prosecution is inhibited from discussing their policy choices in a meaningful way because any admission that the decision was not a strictly legal one is tantamount to admitting the politicization of the ICC. If not one, then the other. He argues that by purposefully avoiding the binary approach of law v. politics, things might be a lot better. And franker. I'd certainly be a big fan of that - I think we all would.
Iverson has really struck a chord with me in this post regarding the need to move beyond the law/politics framework. The way I normally resolve it, however, (in casual, not very well thought out conversation) is to say there is law, there is political politics, and then there is legal politics. Political politics, for me, is when for example ICTY prosecutors used EU membership as a carrot for Serbian cooperation. I did not think this was ok, effective as it may have been. Legal politics is the decision to put on a witness you suspect to be unreliable because of certain institutional pressures and considerations - such as the absence of other witnesses to fill the void, the hope that maybe the mud just might stick, and the calculation that the risk to the institution's integrity posed by dropping the witness is greater than the risk of the witness not performing on the stand. It might blow up in your face, but there is enough legal cover for you defend your choice if it does. What do you do? That to me is legal politicking, and it's generally ok (but perhaps not in that particular example!)
True legal decisions - or at least, the legal decisions that we can be sure really are legal decisions - are those rare things that happen when the court applies the right legal test to the facts and draws the right conclusion. I suspect that one of the reasons we see so few of those is not because judges and prosecutors are so busy with their politicking but rather because there is still so little agreement on what the law is and how it is supposed to be applied (see for instance the reactions to, and differing opinions within, the Gotovina Appeals Judgment issued last month). This, I submit, is what gives rise to the WTF reaction so commonly experienced upon the issuance of an ICL judgment or OTP indictment, as opposed to judges and prosecutors actually entertaining improper considerations all of the time - though of course, that does happen too...