The Exercise of Prosecutorial Discretion at the International Criminal Court

2013 ◽  
Author(s):  
Aiste Dumbryte
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
Prosecutorial Discretion

Judicial Control over Prosecutorial Discretion at the International Criminal Court

2019 ◽  
Vol 19 (6) ◽  
pp. 979-1013
Author(s):  
Triestino Mariniello
Keyword(s):  
Judicial Review ◽  
International Criminal Court ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Prosecutorial Discretion ◽  
Judicial Control

This article places into question the scope of judicial control over the Prosecutor’s decision whether or not to investigate a situation. It addresses the on-going tensions between the Pre-Trial Chambers and the Prosecutor for the control of the procedure which will determine the stage of the initiation of an investigation. It commences with an examination of the Chambers’ approach to the authorisation of the Prosecutor’s request to commence a proprio motu investigation. Then, it critically analyses the lack of judicial mechanisms of control over the Prosecutor’s decision not to commence an investigation under Article 15. The second part investigates the judicial oversight of the Prosecutor’s decision not investigate referred situation. It analyses whether the Pre-Trial Chamber may reassess the factual allegations used by the Prosecutor not to start the investigation, and whether the Prosecutor has to comply with (strict) instructions provided by the judicial review.

National Security Evidence: Enhancing Fairness in View of the Non-Disclosure Regime of the Rome Statute

2014 ◽  
Vol 47 (3) ◽  
pp. 331-359
Author(s):  
Ariel Zemach
Keyword(s):  
National Security ◽  
Present Article ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Fair Trial ◽  
Criminal Court ◽  
The State ◽  
Prosecutorial Discretion ◽  
Selection Of

The Rome Statute of the International Criminal Court completely divests the Court of the power to compel a state to disclose evidence in its possession if the state opposes such disclosure on grounds of national security. If a state refuses to disclose information essential to the adjudication of a case on national security grounds, the ICC may settle fair trial concerns either by drawing factual inferences favourable to the defendant or by staying the proceedings. I argue, however, that in practice such judicial powers do not provide a sufficient guarantee of a fair trial. I propose to allay fair trial concerns arising from the refusal of states to allow the ICC access to evidence in their possession by introducing a reform in the exercise of the ICC's prosecutorial discretion. According to my proposal, the requirement of a fair trial, which entails the disclosure of material essential for the defence, would be incorporated into the criteria that guide the ICC Prosecutor in the selection of cases for prosecution. Although the present article focuses on the issue of national security evidence, the reach of the proposed reform extends to all cases of state refusal to allow the ICC access to evidence, regardless of the grounds for refusal.

‘Interests of justice’: Defining the scope of Prosecutorial discretion in Article 53(1)(c) and (2)(c) of the Rome Statute of the International Criminal Court

2017 ◽  
Vol 30 (3) ◽  
pp. 731-751 ◽  
Author(s):  
TALITA DE SOUZA DIAS
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
International Community ◽  
Criminal Court ◽  
Vienna Convention ◽  
Prosecutorial Discretion ◽  
New Developments ◽  
Policy Paper ◽  
Peace And Security

AbstractThe International Criminal Court (ICC) was established with the aim of prosecuting individuals for the gravest crimes of concern to the international community. Yet some provisions of its Statute (the Rome Statute) recognize the need for temporarily setting aside criminal investigations or prosecutions in favour of different considerations. Two of these provisions are Article 53(1)(c) and (2)(c) of the Statute. They allow the Prosecutor of the Court to use his or her discretion in deciding not to initiate an investigation or a prosecution in the ‘interests of justice’. Nonetheless, the ambiguity of this phrase, coupled with an absent definition, have given rise to a polarized debate about its meaning and the Prosecutor's ensuing margin of discretion: some consider matters of peace and security and alternative justice mechanisms as possible ‘interests of justice’, while others exclude them. Among those adopting the latter view is the ICC's Office of the Prosecutor (OTP), as can be inferred from a 2007 Policy Paper on the Interests of Justice and a 2013 Policy Paper on Preliminary Examinations, which continue to be upheld by the Office. Against this backdrop and amid new developments at the ICC which call into question the OTP's position, the purpose of this article is to develop a comprehensive interpretation of Article 53(1)(c) and (2)(c) of the Rome Statute, using all the interpretative tools provided by Articles 31 to 33 of the Vienna Convention on the Law of Treaties.

Transitional justice and the International Criminal Court – in “the interests of justice”?

2007 ◽  
Vol 89 (867) ◽  
pp. 691-718 ◽  
Author(s):  
Dražan Đukić
Keyword(s):  
Transitional Justice ◽  
International Criminal Court ◽  
International Criminal ◽  
Radical Change ◽  
Criminal Court ◽  
Truth Commissions ◽  
Prosecutorial Discretion ◽  
Post Conflict ◽  
Treaty Interpretation

AbstractTransitional justice encompasses a number of mechanisms that seek to allow post-conflict societies to deal with past atrocities in circumstances of radical change. However, two of these mechanisms – truth commissions and criminal processes – might clash if the former are combined with amnesties. This article examines the possibility of employing the Rome Statute's Article 53 so as to allow these two mechanisms to operate in a complementary manner. It considers three arguments – an interpretation of Article 53 in accordance with the relevant rules on treaty interpretation, states' obligations to prosecute certain crimes and the Rome Statute's approach to prosecutorial discretion – and concludes that Article 53 is ill-suited to accommodate truth commissions in conjunction with amnesties.

Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court

2003 ◽  
Vol 97 (3) ◽  
pp. 510-552 ◽  
Author(s):  
Allison Marston Danner
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
United Nations Security Council ◽  
Crimes Against Humanity ◽  
Single Individual ◽  
Prosecutorial Discretion ◽  
International Criminal Tribunals ◽  
Domestic Law

The rapid ratification of the Rome Statute of the International Criminal Court (ICC) and the orderly election of its judges and prosecutor belie the radical nature of the new institution. The Court has jurisdiction over genocide, aggression, crimes against humanity, and war crimes—crimes of the utmost seriousness often committed by governments themselves, or with their tacit approval. The ICC has the formal authority to adjudge the actions of high state officials as criminal and to send them to jail, no matter how lofty the accused’s position or undisputed the legality of those acts under domestic law. While the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) also possess this authority, those institutions operate directly under the control of the United Nations Security Council and within narrow territorial limits. The ICC, by contrast, is largely independent of the Council and vests the power to investigate and prosecute the politically sensitive crimes within its broad territorial sweep in a single individual, its independent prosecutor.

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