Chapter

The Politics of Discursive Legitimacy: Understanding the Dynamics and Implications of Prosecutorial Discretion at the International Criminal Court

Michael J. Struett

in Governance, Order, and the International Criminal Court

Published in print May 2009 | ISBN: 9780199546732
Published online September 2009 | e-ISBN: 9780191720406 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199546732.003.0005
The Politics of Discursive Legitimacy: Understanding the Dynamics and Implications of Prosecutorial Discretion at the International Criminal Court

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The authorities of the International Criminal Court are in a position to use their autonomy to develop substantial discursive separation from the pressures of realpolitik. Because the design of the ICC allows its officers considerable independent authority from the pressures of the officials of the state governments that created it, these officers are in a position to argue for the fair imposition of international criminal law standards with less need to bend to the realities of interstate power politics. This chapter proposes that the flexible design of the ICC advances the procedural aspects of legitimacy through the discursive dynamics of prosecutorial authority and discretion. It argues that such discursive legitimacy constitutes a way of understanding the universalizing effects of legalism; and that the permanence of the Court ensures that reasons and arguments (discursive strategies) will be formulated in response to the effects of any negative perception(s) of foreign legalism.

Keywords: discretion; discursive legitimacy; argumentation; prosecutorial authority; reasoning; Uganda

Chapter.  11297 words. 

Subjects: US Politics

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