The International Criminal Court: Possibilities for Prosecutorial Abuse

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So many problems are present in setting up an international criminal court consistent with the current international legal, moral, and political orders, that one must at least admire the intensity and dedication of those involved in the effort. It is tempting to conclude that the current international orders are simply not consistent with the pattern of a world government that is implied in the notion of a transnational criminal court administering "universal law" applicable to "universal crimes." But the attempts to build a superstructure of legal governance on the existing system, using the tools of positive international law, have achieved a remarkable degree of superficial success. Thus, it seems appropriate to pause and reconsider the situation. On the face of it, the questions themselves are daunting. Who should determine the content of any international criminal law? How should that determination be made? When and to whom should it be applied, and what institutional structure should govern? It is far beyond the power of a single writer to address all these issues in a short compass. [1]

A very large group of statesmen and scholars has attempted to grapple with these issues. The result is the Rome Statute for an International Criminal Court. [2] To analyze that attempt definitively at this time is difficult, however, because the statute itself is being expanded and supplemented in ways that substantially revise it. Nonetheless, some issues which seem to be ignored or underrated by those involved in framing the Statute and its implementing regulations seem obvious to those who have had to work with attempts in the past to systematize an hypothesized international criminal law. [3]



One key aspect is the authority of the prosecutor to initiate the process of the tribunal by charging particular individuals with violations of the law set out in the statute-the supposed international criminal law. As proposed, the discretion given to the prosecutor is enormous. Thus, the potential for abuse of that discretion is also enormous; and reasonable people may disagree that the discretion will always be exercised consistently with basic concepts of justice or the rule of law supposedly implemented by the proposed institution. Indeed, if the prosecutor is to act at all, disputes about the conformity of the definitions of "international crimes" with true international law must arise if an accused is to be able to defend him or herself or, if the prosecutor does not act, identical questions must arise as aggrieved victims of alleged atrocities question the failure of the institution to administer at least retributive justice against those alleged to have committed various atrocities.[4]

A. Distribution of Authority under Prior Arrangements

Until the impetus for an international criminal court reached a degree of intensity that made it politically impossible to stop, individual states had responsibility for formulating appropriate criminal laws and applying appropriate criminal sanctions.[5] This resulted in various unworkable arrangements. Under the Genocide Convention of 1948, for example, only the state in which "genocide" occurred has the responsibility to criminalize it or to submit accusations of genocide to an international tribunal.[6] But the state in which the suspected atrocities occurred is obviously the state least likely to accuse its own leaders of pursuing a villainous national policy while those leaders retain their authority under the municipal constitutional law of that state. If there had been a radical change in government in that state, and the trial were part of a political vendetta against the former leaders, it is questionable whether "justice" could be done because i t is doubtful that exculpatory evidence would be made available.[7] Similarly, if there had been a negotiated change of government, then questions would arise over whether the viability of amnesties and other legal arrangements agreeable to the parties directly involved should be jeopardized by outsiders. …


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