Intrepid Justice: Matthew Gillette Discusses Prosecutorial Discretion at the International Criminal Court

By Gillette, Matthew | New Zealand International Review, March-April 2007 | Go to article overview

Intrepid Justice: Matthew Gillette Discusses Prosecutorial Discretion at the International Criminal Court


Gillette, Matthew, New Zealand International Review


The level of prosecutorial discretion provided under the Rome Statute of the International Criminal Court (ICC) has caused some discontent amongst commentators and was one of the main reasons why the United States refrained from becoming a state party. However, a detailed examination of the structure and intended functioning of this historically unique institution reveals that the seemingly wide prosecutorial discretion is subject to various constraints that should serve to uphold the legitimacy of the Prosecutor's position.

Under Article 15(1), the Prosecutor, currently Luis Moreno-Ocampo, may launch investigations on his own accord, or proprio motu, without reference from a state party or from the UN Security Council. The Prosecutor may also, under Article 53, exercise his discretion not to proceed with an investigation or trial. Although Article 15(3) requires the Prosecutor to obtain authorisation to launch an investigation from a pre-trial chamber, the power to initiate judicial proceedings for the most serious crimes known to man remains a wide one. Proceedings may potentially be brought against any person, no matter their rank or position in their domestic jurisdiction, as Article 27 explicitly removes the defence of head of state immunity.

Furthermore, under Article 12, proceedings may be brought in relation to any incident that occurs on the territory of a state party or that is alleged to have been committed by a national of a state party. In comparison with the ICC's closest relatives, the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, the ICC Prosecutor enjoys a broad discretion. Under the statutes of those tribunals, each office of the prosecutor's ability to launch investigations is limited to the territory of the former Yugoslavia and to Rwanda and its neighbouring states respectively. The Tribunal for Rwanda's temporal jurisdiction is limited to the year of 1994. Contrastingly, the drafters of the Rome Statute provided a broad jurisdictional basis and carved out a wide power for the Prosecutor to source case law independently of states and the Security Council, both of which are clearly political entities.

Two criticisms

Two criticisms are made of the wide discretion granted to the ICC prosecutor. Firstly, it is claimed that the role is inherently political and the proprio motu power will be misused. Secondly, it is claimed that the powers granted to the Prosecutor are illegitimate as the Prosecutor is not elected, and thus not accountable in a democratic capacity for the results of decisions carrying significant political ramifications. Given the political controversy that has surrounded the inception of the ICC, these criticisms have gained much traction in public debate.

In sourcing cases, the Prosecutor is likely to receive a vast number of allegations of crimes within the purview of the ICC. Already more than 2000 incidents have been referred to the court, predominantly from non-governmental organisations. The International Federation for Human Rights, by way of example, has already submitted information concerning incidents in the Central African Republic, the Democratic Republic of the Congo, Colombia and the Ivory Coast. From the many potentially meritorious allegations, the Prosecutor will have to choose the relatively small number with which it will be able to proceed.

Because of this necessary funneling, a certain politicisation of the process is unavoidable. In the second three-year review of its operations released by the Office of the Prosecutor in October 2006, it is revealed that a process of sequencing is favoured in selecting suspects to proceed against: suspects bearing the greatest responsibility are investigated first, followed thereafter by the other suspects in diminishing order of importance. This has been criticised as being a ponderously slow process and encouraging feelings of impunity amongst those further down the ladder of potential indictees. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Intrepid Justice: Matthew Gillette Discusses Prosecutorial Discretion at the International Criminal Court
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.