The Domestic Prosecutor as an Enforcer of ICL

Abstract This study examines prosecutorial policy and case selection in domestic prosecutions of international crimes in the Netherlands, revealing that evidence‑gathering and investigatory capacity are the principal determinants of whether a case proceeds. Regardless of the wide discretion granted to Dutch prosecutors under the Dutch Code of Criminal Procedure, actual prosecutorial strategies remain largely implicit. This article shows that there is little room for prosecutorial policy in universal jurisdiction (UJ) cases, as the difficulties in evidence-gathering and capacity restraints are the determinative factors in realizing a prosecution. Moreover, the study finds that the presence requirement under Dutch law effectively makes prosecutions suspect-driven rather than crime-driven, creating a limitation for more holistic prosecutorial policies. This article thus challenges prevailing narratives that interpret the decision-making behind UJ cases primarily in political terms, arguing instead for a reconceptualization that centres evidentiary difficulties and investigative feasibility.