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With the ICC’s unprecedented scope of jurisdiction and limited resources comes the need to select situations and cases that the Prosecutor wishes to pursue. As the Prosecutor selects her situations and cases, she constantly makes choices, aff orded to her by the statutory discretion she enjoys as a Prosecutor. The purpose of this study is to investigate three aspects of the Prosecutor’s discretion: What is the extent of the Prosecutor’s discretion in pursuing individual situations and cases? How much does the Prosecutor adhere to and further the objectives of the ICC in the exercise of her discretion? To what degree should the Prosecutor use policy considerations in selecting situations and cases to pursue?
This timely book provides a comprehensive guide to, and rigorous analysis of, prosecutorial discretion at the International Criminal Court. This is the first ever study that takes the reader through all the key stages of the Proscecutor's decision-making process. Starting from preliminary examinations and the decision to investigate, the book also explores case selection processes, plea agreements, culminating in the question of how to end engagement in specific country situations. The book serves as a guide to the Rome Statute through the lens of the Prosecutor's activities. With its unique combination of legal theory and specific policy analysis, it addresses broader questions that will be relevant to other international and hybrid criminal courts and tribunals. The book will be of interest to students, practitioners of law, academics, and the wider public concerned with international law, criminal justice and international relations.
This paper sheds some light on the exercise of prosecutorial discretion in international criminal law, particularly within the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the Former Yugoslavia. It argues that in international criminal law, the area where prosecutorial discretion becomes most politically sensitive concerns the power to select which individuals to prosecute, what rank of individual should be targeted for prosecution, and how many individuals to try before an international criminal tribunal. After briefly looking at the extent of the discretionary powers given to the international Prosecutor and, more importantly, at how they are exercised in practice, the author tries to identify the limits of these powers from three different angles: their legality in the light of the right to equality of treatment, the duty of impartiality of the Prosecutor and, finally, the legitimacy of the decisions to indict considering other efforts to negotiate peace. It concludes by identifying the new trends observed in international criminal law to limit prosecutorial discretion at the International Criminal Court, the Special Court for Sierra Leone and in the newly adopted completion strategy of the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the Former Yugoslavia.
In its short life, the International Criminal Court (ICC) has issued public warrants of arrest for 14 persons, launched two trials and provoked controversy across the globe. Much unease about the Court boils down to one issue: how should the Prosecutor decide, among thousands of crimes and perpetrators within his jurisdiction, which ones to charge? To date, considerable discussion about the ICC has taken place in an atmosphere of unreality ill-served to educate and inform. While critics paint a picture of justice as one-sided and politically determined, embattled defenders offer a pristine notion of 'law in a vacuum' that, at its extreme, stretches credibility. If the ICC is eventually to command sustained public support, we must move beyond platitudes in explaining the nuanced nature of the Prosecutor's discretion: grounded in law and evidence, but, of necessity, taking into account broader considerations of institutional strategy and policy, while refraining from partisanship or bias.
The Prosecutor of the International Criminal Court is the first prosecutor of a permanent international criminal court and is responsible for investigating situations where international crimes appear having been committed and for prosecuting perpetrators of these crimes before the Court. The traditional contrast between those systems applying the principle of mandatory prosecution and those applying the discretionary principle, raised the question on the applicable model in the international criminal justice system. The traditional selectivity characterizing International Criminal Law, the limited resources, and the tendential use of procedural mechanisms familiar to common law systems before international criminal tribunals are some of the reasons leading scholars to attribute discretion to the Prosecutor of the International Criminal Court as well. The purpose of this book is to determine whether the Prosecutor effectively enjoys discretion and possibly to what extent. The statutory framework does not necessarily point towards a strong discretionary power of the Prosecutor, and practice reveals that the discretion granted to the Prosecutor in recent years seems sometimes to have jeopardized the effectiveness of his activities.
Truth commissions and the new International Criminal Court (ICC) appear to be very different mechanisms for dealing with human rights abuses: the primary purpose of a truth commission is to compile an accurate record of what happened, whereas the ICC is designed to punish individual perpetrators. This article considers how these two institutions will interact, and, more specifically, how the ICC Prosecutor will deal with perpetrators who have been granted amnesties by a truth commission in return for divulging their crimes. The ICC Statute, which contains the powers of the Court and the Prosecutor, fails to provide the ICC Prosecutor with any clear guidance on this question. On one interpretation it supports a prosecutorial policy that completely ignores amnesties, but on another, it supports the Prosecutor who decides to work cooperatively with those truth commissions that are able to demonstrate their legitimacy. Under a cooperative approach the Prosecutor would delay bringing any prosecutions until a truth commission has completed its work and then prosecute individuals from the pool who had not been granted amnesties. Such an approach could bolster the legitimacy of the ICC, by providing a principled basis for the exercise of prosecutorial discretion, and assist truth commissions, by encouraging more perpetrators of serious crimes to apply for amnesties, and, in the process, divulge their secrets.