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

Article excerpt

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. …