PhD research: How international prosecutors make their choices
International prosecutors, for instance at the International Criminal Court in The Hague, investigate particularly serious crimes such as genocide. They decide, among other things, whether or not to prosecute. PhD candidate Cale Davis investigated how prosecutors come to such decisions and will defend his dissertation on 23 February 2022.
Law has no life independent of people, says Davis. Law doesn’t just happen: regardless of whether it is tax law, administrative law, company law, or tort law, all law needs people to decide whether and how to implement it. ‘Some areas of law are obviously more consequential than others. International criminal law, which is all about genocide, war crimes, and crimes against humanity, is arguably one such area. We like to say that these sorts of crimes “offend humanity”. International prosecutors are the people in charge of investigating and prosecuting allegations of these crimes. They have to make many decisions. What and where do we need to investigate? What crimes should I charge? Who should I charge? Should I negotiate a plea deal? What witnesses should I call to give evidence at the trial? Should I appeal? And there are many, many more.’
It struck Davis that despite the fact international prosecutors are making critical decisions about how international criminal law is implemented, no one really seemed to know how and why these decisions are made. ‘This was odd, particularly given that prosecutors exercise their powers for the benefit of society.’
Several scholars in the past have shed light on this discretion, or as Davis defines it: the act of reaching a reasoned conclusion about the appropriate course of action to pursue. ‘But every facet of life informs the choices people make’, according to Davis. ‘Everyone has a unique background. A unique education. A unique perspective on what their job is. No two people are identical. We need to accept that people reason differently and stop believing in the illusion that we can come up with a one-size-fits-all rule book. Instead of trying to find the constraints, we should look at how decision-making is done in practice.’
Variety of considerations
Davis’ thesis illustrates the variety of functional, normative, and strategic considerations that have influenced choices that international prosecutors have made. It argues that these considerations have become relevant by prosecutors adopting roles as moral and procedural norm performers, builders (of law, history, institutions, and power), and guardians (over institutions, people, and concepts). ‘For example, a prosecutor might see themselves as being the guardian or protector of their court. If a court’s budget is under threat because its funders don’t think it’s doing enough, a prosecutor might think they should start prosecuting some simple cases to stave off the risk of funding being withdrawn.’
According to Davis, this thesis encourages a conscious engagement with whether it is appropriate for prosecutors to be adopting these roles in the first place. This thesis embraces the call for greater attention to be given to how the development and implementation of international criminal justice is shaped by individual practices, and highlights that, ultimately, the law cannot be properly understood without exploring the ways in which people make the decisions that transform it from an abstract set of ideas and notions into practical action.
In the field
Doing this research was a lot of fun, says Davis. ‘I was very fortunate that I got to spend a lot of time “in the field” interviewing senior prosecutors about their decision-making. That allowed me to get a lot of very interesting, first-hand insights into how discretion worked from the people that actually exercised it.’
Besides doing his research, Davis also coached Leiden’s ICC Moot Court Competition team for several years. ‘I am a firm believer in the value of this type of practical legal education. These experiences give students the chance to learn and practise valuable skills – like time management, advocacy, teamwork, and legal drafting – in a consequence-free environment.’ Even though the ICC Moot is framed as a competition, it is, first and foremost, a pedagogical exercise. ‘It’s nice to compete well, of course, but the outcome should never overshadow the learning experience.’
If Davis was to give one piece of advice to a PhD candidate just starting his or her research, it would be this: ‘During your PhD, you’re going to come across a lot of people who will happily offer you their opinions on what you should be writing about and ask whether you’ve looked into topics that you haven’t explored or even considered. Don’t worry about that. Always listen, always consider, always think – but you must also have confidence in your own project. After all, it’s your research.’