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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.
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.
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 book provides the first scholarly investigation of prosecutorial discretion in the International Criminal Court (ICC) from an interdisciplinary perspective. This work analyses the discretionary power of the ICC prosecutor and its scope. It explains that there is a tendency to overlook the necessity of distinguishing between the various usages of discretion when exercised as a power authorised by the law and effect when applying indeterminate legal thresholds. The author argues that the latter indeterminacy may give decision makers an unwarranted opportunity to exercise a wide range of discretion, where extra-legal factors may be considered. In comparison, prosecutorial discretion allows decision makers to consider extra-legal considerations. This book also discusses the relevance of political considerations within the decision-making process in the context of the exercise of prosecutorial discretion. It suggests that there need not be a conflict between the broad sense of justice as outlined in the Statute and political factors in giving effect to decisions. This book will be of interest to students of international law, global governance and international relations.
In this book, Erik Luna and Marianne Wade examine the considerable powers of the American prosecutor and look abroad in order to learn valuable lessons from a transnational examination of prosecutorial authority. They explore parallels and distinctions in the processes available to and decisions made by prosecutors in the United States and Europe. Through the varied topics covered by the contributors on both sides of the Atlantic, they demonstrate how the enhanced role of the prosecutor represents a crossroads for criminal justice with weighty legal and socio-economic consequences.
A Theoretical Framework for the Analysis of Prosecutorial Discretion at the ICC -- Prosecutorial Discretion During Preliminary Examinations -- A Duty to Investigate? -- Case Selection -- Plea Agreements -- The Interests of Justice -- Discretion and Completion -- Conclusion.
The gravity of a crime or case features in various international and national legal frameworks for the investigation and prosecution of international crimes. At the International Criminal Court (ICC), 'sufficient gravity' is a requirement for the admissibility of a case specified in Article 17(1)(d) of the Rome Statute. The open-textured nature of the provision leaves the manner of its application and, ultimately, its purpose in the context of the Prosecutor's decisions whether to investigate and prosecute, open to discussion. Set against the backdrop of ongoing debates on how to justify selective investigations and prosecutions at the Court, Gravity at the International Criminal Court: Admissibility and Prosecutorial Discretion addresses the question of how the gravity criterion is to be applied in the context of the Prosecutor's respective decisions whether to investigate and prosecute. It argues that the purpose of the gravity criterion in this context is the allocation of investigative and prosecutorial resources. First, identifying appropriate indicators of gravity, the book contends that the application of Article 17(1)(d) requires a subjective assessment that involves the exercise of discretion. Second, by clarifying the respective roles of the Prosecutor and the Pre-Trial Chambers of the Court in the assessment of gravity in different contexts, it argues in favour of wide prosecutorial discretion in the making of this assessment compared with the limited powers of judicial oversight conferred on the Pre-Trial Chamber. Timely and thorough, Gravity at the International Criminal Court proposes a more coherent and persuasive application of the criterion, contextualizing and comparing the ICC's approach in relation to other courts and bodies of law including international human rights law, international investment law, and international trade law.
Prosecutorial discretion is a key notion in all criminal justice systems. It also applies at international level; however, while at national level there is a well developed body of precedents or specific legislation that guides the Prosecutors in their activity, at the international level, the situation is radically different, since international criminal courts are of new creation and there are very few precedents to look at. Hence, the author identifies a variety of factors that influence international Prosecutors in the exercise of their discretionary powers to open investigations and/or bring charges. In particular, on the basis of the case law of the ad hoc Tribunals, he underscores that in international criminal justice, it is extremely important to take into account the relevant international instruments according to which the various courts have been established.
This pioneering book explores the intersections of law and culture at the International Criminal Court (ICC), offering insights into how notions of culture affect the Court’s legal foundations, functioning and legitimacy, both in theory and in practice.