Introduction

As was shown in chapter 4, selectivity ratione personae is a critique that can be (and often has been) levelled at international criminal law. However, this is not to say that States never chose to prosecute their own nationals. With the turn to prosecution that occurred in the 1990s, of which the promulgation of the Rome Statute for the International Criminal Court in 1988 was both cause and effect, selectivity in the sense it was dealt with in chapter 4, appears to be becoming more limited, although it will be by no means eliminated.

However, selectivity bubbles to the surface in a more subtle way, in the parameters of criminal responsibility. Let us return to Kenneth Kulp Davis' explication of selectivity: ‘when an enforcement agency or officer has discretionary power to do nothing about a case in which enforcement would be clearly justified, the result is a power of selective enforcement. Such power goes to selection of parties against whom the law is enforced. Selective enforcement may also mean selection of the law that will be enforced; an officer may enforce one statute fully, never enforce another and pick and choose in enforcing a third.’ This chapter, and chapter 6, concentrate on a form of selectivity derived from the second aspect of this definition.