This is interesting. Of course, by normal prosecutorial standards, Karim Khan is absolutely right. Those accused of crime should not be subject to long drawn-out proceedings if the chances of conviction have diminished.

But his decision will disappoint many. For those who feel they have suffered at the hands of high-level political actors, even declaration of an intent to prosecute can feel like a step towards justice. It signals the ‘end to impunity’, a slogan that captured the imagination of millions in Kenya, when the ICC prosecutor declared his intent to charge those accused of inciting violence during the 2007 elections. Even if the cases were later dropped, the very fact that the ICC had taken them seriously was a signal that the world had noticed.

The ICC is no normal court. It’s role is, above all, symbolic. Successful prosecutions are hardly likely to deter future crimes, but they do make statements about justice. And for many people, so, too, does the mere fact of prosecution.

But whether any of this should affect prosecutorial decisions is a very difficult question.

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