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35 New York University Journal of International Law and Politics 1015 (2003)


This Article examines the decision by the ICTY Prosecutor not to investigate NATO's bombing campaign during the Kosovo war - and the Prosecutor's unusual decision to publish an Inquiry explaining its reasons. Many scholars have examined the Inquiry, but all have focused on its substantive legal analysis. This Article takes a different approach: It focuses on how the Prosecution reached the conclusion not to investigate. Using rhetorical analysis, it examines the Prosecution's decision-making mindset to see what that indicates about the shape of future international prosecutorial decision-making, including at the ICC.

There is no evidence that the Prosecution succumbed to direct pressure. But the question we must consider is this: Is an international court institutionally capable of asking the questions about law-in-politics that it must if it is to fulfill the promise of international legal justice? This Article argues that the Inquiry raises serious concerns about the Prosecution's compliant attitude toward NATO's liability, especially in the face of changing technology in war. It makes an original contribution to debate about the ICC through a case study of the overlooked, but troubling, effects of a prosecutor's discretion not to act. But more, it argues that the Inquiry's structure and style entrench a worrisome immaturity in our approach to international justice. The Inquiry is evidence that an international justice's prospects are limited; our aspirations and strategies may have to be adjusted accordingly, because a court that produces answers, even right answers, for the wrong reasons may never fulfill its promise.