Prosecutorial Discretion at the International Criminal Court

Anni Pues

• Publisher: Hart Publishing
• Year: 2020
• Print ISBN: 9781509944101
• eBook ISBN: 9781509928699
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

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.

1

A Theoretical Framework for the Analysis of Prosecutorial Discretion at the ICC

I.INTRODUCTION

The real challenge posed to a Prosecutor is to choose from many meritorious complaints the appropriate ones for international intervention.¹

After 15 years of operations, the Office of the Prosecutor (OTP) at the International Criminal Court (ICC) is conducting 10 preliminary examinations in countries that have experienced complex and prolonged conflicts such as Afghanistan and Colombia as well as 11 investigations in 10 different countries.² Each investigation addresses situations that contain dozens of potential cases; however, the ICC is limited in its capacity to pursue those and, to date, these investigations have resulted in the prosecution of 27 cases.³ The figures demonstrate the high degree of selectivity that is necessary at the early stages of the proceedings. Selectivity in this context is understood as the ‘discretionary power to do nothing about a case in which enforcement would be clearly justified, the result [being] … selective enforcement’.⁴ The challenge for the Prosecutor is the appropriate selection, through the exercise of prosecutorial discretion, in such way that it is not perceived as arbitrary and optimises the impact of the cases that are chosen. Nevertheless, the choices made will inevitably disappoint many who hope that the ICC will deliver justice for them.

The Prosecutor’s decisions also have the potential to undermine the Court’s legitimacy through perceptions of bias. Why has the Prosecutor, to date, only prosecuted cases from Africa? Why do most prosecutions focus on non-state actors and not address the alleged crimes committed by government forces as is so far the case in the situation in Côte d’Ivoire? These are the kinds of questions that indicate how strongly the selective, discretionary decisions of the Prosecutor influence perceptions of the Court’s legitimacy. Therefore, it is crucial that the exercise of discretion aims at safeguarding and enhancing the legitimacy of the Court.

This chapter outlines a framework for the analysis of prosecutorial discretion that is focused on those elements that are crucial for the legitimacy of the Court. As such, its focus is more theoretical in nature than those that follow. Because the ICC is unique in its design and aims, the nature of prosecutorial discretion differs from other international and domestic systems. It entails highly symbolic decisions, contains policy and procedural decisions, and requires the use of indeterminate notions such as gravity and the interests of justice. As I will explain in this chapter in more detail, it is crucial to determine the legal limits to the scope of discretion at the different stages of the proceedings, as well as those aims and principles that should guide them. A further layer of analysis includes accountability mechanisms, and the degree of transparency of the discretionary decisions as well as their reasons. Accountability and transparency are crucial elements to safeguard and enhance the legitimacy, as well as the quality, of prosecutorial decision-making.

II.UNDERSTANDING PROSECUTORIAL DISCRETION IN ITS SYSTEMIC CONTEXT

Prosecutorial discretion at the ICC is distinct from prosecutorial discretion in domestic systems, because it is located in a system combining elements from different legal traditions as well as unique features.⁵ The trial at the ICC is, for example, structured as a party process resembling common law structures. But in contrast to prosecutors in some common law systems, the Prosecutor at the ICC is obliged to investigate incriminating as well as exonerating circumstances equally,⁶ which is more akin to the procedure in civil law systems.⁷ Unique to the ICC system is the relationship between the Prosecutor and the Pre-Trial Chambers, whereby the latter must authorise or confirm certain prosecutorial decisions.⁸ These mechanisms allow control⁹ and supervision of prosecutorial decisions and shape its form, although the precise boundaries of this control can be contentious.

The ICC is also different from domestic systems because its legal authority is located in international law with its horizontal nature. Unlike domestic systems, the legal system governing the ICC does not feature ‘the state’ in the central role holding the monopoly of force and supreme authority.¹⁰ The Prosecutor can formulate her own policies to guide her exercise of discretionary powers. The Assembly of States Parties (ASP) to the Rome Statute has only a limited role in this through its management oversight over the Prosecutor, the budgetary competences, and its possibilities to establish control mechanisms in order to enhance efficiency and economy at the Court.¹¹ Furthermore, the Prosecutor cannot rely on stringent enforcement of discretionary decisions, because of the lack of direct enforcement power and the OTP’s reliance on voluntary compliance by states with the decisions of the Court. Because of all these differences, the meaning of prosecutorial discretion within a specific domestic system cannot simply be transferred to the ICC. Furthermore, as will be shown subsequently, this absence of the state and the difficulties arising therefrom make it essential that the Prosecutor pay specific attention to safeguarding the Court’s legitimacy. Although the legitimacy of the Court matters, beyond being instrumental for the functioning of the Court, only a legitimate Court is able to contribute to international justice.

Prosecutorial discretion at the ICC is also different from discretion at other international courts and tribunals. The ICC is the only international criminal tribunal with potentially universal territorial jurisdiction.¹² All other international tribunals are designed to deal with one country or conflict alone.¹³ Only the ICC Prosecutor has the competence to trigger the jurisdiction of the Court and can initiate investigations into specific situations on her own initiative.¹⁴ Another distinguishing feature is the relationship between the Court and domestic jurisdictions. In contrast to the primary jurisdiction of the ad hoc tribunals, the ICC’s jurisdiction is complementary to the jurisdiction of the State Parties.¹⁵ This means that the State Parties have the primary responsibility to investigate and prosecute international crimes; at the ICC, cases are only admissible if ‘the State is unwilling or unable … to carry out the investigation or prosecution’.¹⁶ This changes the dynamics of interaction between the Prosecutor and State Parties; the principle of complementarity provides states with a tool to challenge prosecutorial decisions, which, in contrast, was not the case at the ad hoc tribunals.¹⁷ At the same time, the vast territorial reach of the ICC restricts the OTP in the number of cases it can bring in each situation under investigation. This makes it necessary for the Prosecutor to make much more drastic selection decisions than her counterparts.¹⁸ Because of these differences, the evaluation of prosecutorial discretion at the ICC is not based on a comparative approach, but within its own unique context.

III.DIMENSIONS OF DISCRETION

To understand the notion of prosecutorial discretion, the ordinary meaning of discretion in the English language serves as the starting point of this enquiry. Discretion is defined as ‘the freedom to decide what should be done in a particular situation’.¹⁹ The Rome Statute provides the Prosecutor with the ‘freedom to decide what should be done’ whenever the Prosecutor is provided with procedural discretion²⁰ as the freedom to decide on procedural action or legal consequences. Procedural discretion can be clearly identified in the Rome Statute: ‘The Prosecutor may’ is one of its indicators.²¹ Another is the absence of any regulation in those areas that are primarily within the competence of the Prosecutor. Procedural discretion derives from the legal process and contains the freedom to decide between different procedural options after applying the facts to the legal framework. This form of discretion provides the Prosecutor with flexibility in the type of action or inaction that she chooses.

A.Procedural Discretion

Mapping the most important areas of procedural discretion shows that they are mainly located at the periphery of Court proceedings, or, in other words, outside the courtroom. This includes the preliminary examination stage, in which article 15(2) of the Statute allows the Prosecutor flexibility regarding how she wants to conduct a preliminary examination.²² Once an investigation is under way, case selection is another area with considerable scope for procedural choices such as the choice of incidents and charges. Also, the Rome Statute is entirely silent on the question of completing the investigation in a situation. This provides the Prosecutor with some freedom to choose how to master this task, because she is equipped with the competence to decide about the beginning of an investigation and should therefore also be in charge of the end.²³ Beyond those big decisions with a direct effect on the workload of the Court, the Prosecutor is vested with procedural discretion in various other areas. Throughout investigations, the Prosecutor and the OTP staff need to take discretionary decisions on a day-to-day basis over the course and direction of an investigation. At the trial stage, for example, it is within the discretion of the OTP how to present her case²⁴ or whether to appeal a judicial decision, provided the legal grounds for an appeal are met.²⁵ However, the discretionary power of the Prosecutor shrinks drastically inside the courtroom during the pre-trial and trial stage, because her role is reduced to that of a party, on a par with the defence.

The procedural discretionary dimension is constrained by a variety of legal limitations. Dworkin used a very helpful metaphor in that regard: discretion is the hole in a doughnut, with the dough being the legal framework limiting and determining the hole – the space for discretionary powers in a system.²⁶ In this conception, even ‘strong’ discretion is not totally unbound as it is all located within the hole; certain standards of fairness, rationality and effectiveness, for example, always apply.²⁷ Similarly, HLA Hart suggests that ‘avowed’ discretion is constrained by institutional aims or accountability mechanisms within a system.²⁸ His positivist approach was linked to a ‘broad postwar liberal project’ attempting to promote an understanding of law that would bolster liberal values and distinguish liberal democracy from Nazism and fascism, an aim also shared by Dworkin.²⁹ Promoting the rule of law from a positivist angle requires a system of positively determined norms. Within this determined set of rules, flexibility of the system is provided through discretion. This allows a system to respond to the unforeseen. The key to securing the rule of law within this flexible system is to constrain the exercise of discretion.³⁰ Of key importance is therefore that we develop an accurate understanding for the different dimensions of prosecutorial discretion at the ICC and its legal constraints. Ultimately, this is important for the promotion of the rule of law and for safeguarding the legitimacy of the Court – themes that are at the heart of the book.

B.Interpretative Discretion

Procedural discretionary decisions most often also contain a component of in...

Table of contents

• Cover
• Title Page
• Acknowledgements
• Contents
• Abbreviations
• Table of Cases
• Introduction
• 1. A Theoretical Framework for the Analysis of Prosecutorial Discretion at the ICC
• 2. Prosecutorial Discretion During Preliminary Examinations
• 3. A Duty to Investigate?
• 4. Case Selection
• 5. Plea Agreements
• 6. The Interests of Justice
• 7. Discretion and Completion
• Conclusion
• Bibliography
• Index
• Copyright Page