Prosecutorial Discretion in the International Criminal Court

Legitimacy and the Politics of Justice

Farid Mohammed Rashid

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000482447
• Edition: 1
• Topic: Jura
• Subtopic: Völkerrecht

This book provides the first scholarly investigation of prosecutorial discretion in the International Criminal Court (ICC) from an interdisciplinary perspective.

This work analyses the discretionary power of the ICC prosecutor and its scope. It explains that there is a tendency to overlook the necessity of distinguishing between the various usages of discretion when exercised as a power authorised by the law and effect when applying indeterminate legal thresholds. The author argues that the latter indeterminacy may give decision makers an unwarranted opportunity to exercise a wide range of discretion, where extra-legal factors may be considered. In comparison, prosecutorial discretion allows decision makers to consider extra-legal considerations. This book also discusses the relevance of political considerations within the decision-making process in the context of the exercise of prosecutorial discretion. It suggests that there need not be a conflict between the broad sense of justice as outlined in the Statute and political factors in giving effect to decisions.

This book will be of interest to students of international law, global governance and international relations.

1Introduction

DOI: 10.4324/9781003172086-1

1.1 Introduction

One of the most remarkable worldwide organisations that has been established since the United Nations (UN) is the International Criminal Court (ICC).¹ Like its earlier exemplars, the Nuremberg and Tokyo Tribunals, the ICC is a treaty-based court.² However, unlike the United Nations Security Council (UNSC) Tribunals,³ set up on an ad hoc basis by the UN to deal with only specific situations, the ICC is a permanent court, with an international jurisdiction that may reach any state in the world.⁴ At the conclusion of the United Nations Conference of Plenipotentiaries on the Establishment of an International Criminal Court, the Rome Statute of the Court was adopted in 1998, and began to function in 2002 when it received the 60 required ratifications.⁵ The Preamble of the Rome Statute lays out the principal aim of the Court as ‘ending impunity’⁶ for those who commit the most serious violations of international criminal law, including war crimes, crimes against humanity and genocide.⁷ As such, the ICC is considered a court of last resort.⁸ It will only have jurisdiction when national judicial systems are genuinely unable or unwilling to deal with the given crimes.⁹

The Office of the Prosecutor (OTP), and specifically the Chief Prosecutor, is one of the main bodies of the Court, which attracts much controversy and debate.¹⁰ Unlike the previous international tribunals, the ICC provides its prosecutor with an independent authority to launch the Court’s investigations and prosecutions.¹¹ In addition to a complaint from the Security Council (SC) or referral by a State Party to the Rome Statute under Article 13 (a)(b), the prosecutor has also a proprio motu power under Article 15 to trigger the jurisdiction of the Court.¹² Under Article 53 (1) (a)(b) and (2) (a)(b), the prosecutor is given a broad power to examine the satisfaction of the legal requirements of initiating investigation and prosecuting cases. Paragraphs (1)(c) and (2)(c) of Article 53 provide the prosecutor with a prosecutorial discretion not to initiate an investigation or proceed with a case. The matter of what sort of discretionary power the prosecutor has, under which basis the power is exercised and the scope of this discretion stand at the heart of the examination of these requirements. These questions are crucial and should be scrutinised and analysed for a better understanding of the concept of discretion within the ICC.

The current discussion and analysis regarding the ICC prosecutor’s discretion, in the literature – in addition to the question of its scope¹³ – has been extensively focused on only one sense of discretion, namely prosecutorial discretion. Prosecutorial discretion is meant here as a power authorised by the law for decision makers to choose between different courses of action. It also allows decision makers to choose among these different actions on the bases of extra-legal factors. So, on focusing only on this sense of discretion, some have focused on the question of whether there should be criteria to govern the exercise of prosecutorial discretion. This discussion is usually associated with the issue of the relevance of extra-legal factors. For example, in her much cited article, Allison Marston Danner argues that when exercising prosecutorial discretion, ‘the Prosecutor can best ensure the consistency and perceived fairness of his discretionary decision making through the consistent application of ex ante standards’.¹⁴ She argues that publishing prosecutorial guidelines which are rooted in a ‘good process’, will help to enhance the legitimacy of the Court, as they constrain this discretionary power.¹⁵ She suggests that the failure to promulgate these guidelines will risk credibility and legitimacy, which are fundamental to the success of the Court.¹⁶ Philippa Webb also calls for ‘a model of structured discretion’,¹⁷ where ex ante criteria should guide the exercise of prosecutorial discretion in the context of the assessment of ‘the interests of justice’. When analysing the criteria of the exercise of prosecutorial discretion, James A. Goldston calls on ‘the OTP to set forth in broad terms the contours which guide its exercise of discretion, and/or delineate further the various factors which may come into play’.¹⁸ For the purpose of guiding the exercise of prosecutorial discretion, Brian D. Lepard offers ‘fundamental ethical principles’.¹⁹ Avril McDonald and Roelof Haveman call upon the Prosecutor to develop ‘guidelines’ to govern ‘the decision either or not to initiate an investigation’.²⁰

Others have focused mainly on the relevance of political considerations within the decision-making process when exercising prosecutorial discretion. Here, whilst some of them argue for the favour of the possibility of including such considerations within the decision-making process under certain conditions, others argue strictly for the non-inclusion, and irrelevance of such considerations. For example, Kenneth A. Rodman argues that the exercise of prosecutorial discretion should be carried out in a broad way that considers ‘the political context in which international criminal law has to operate’.²¹ Matthew R. Brubacher also discusses the question of the relevance of ‘political factors’, and argues that such factors are necessary for ‘the success of the Court’, but within ‘a policy-based approach’ that justifies such a process.²² In addition, Alexander K.A. Greenawalt calls for a broader exercise of prosecutorial discretion where political considerations may be considered and, he suggests, within a pragmatic model which aims at moderating the tension between legalisms’ aspirations and the realities of the work of the ICC.²³ He argues that it is true that the ideal suggests that exercise of prosecutorial discretion should be guided by legal rules, ex ante guidelines, or guides of the Court’s judges.²⁴ However, the plausibility of such appeal ‘depends on the adequacy of its underlying assumptions’.²⁵ In the context of the ICC, such an account is not sufficient and a balance is needed between legalism and realism.

The irrelevance of political factors is mainly presented by the Prosecutors and NGOs, who argue that prosecutors are merely to do law and that there is no place for political considerations within their decision-making process. The ICC Prosecutor has always declared that she only applies the law. Both Prosecutors of the ICC have denied the above suggestions by arguing that the current strategy of the prosecution is taken in accordance with the law. The Prosecutor’s statements indicate that the law is clear and does not entail any discretionary fashion, and that the exercise of prosecutorial discretion has no political dimensions. In her response to a question of the place of cases that have political indications, Fatou Bensouda answered, ‘[a]ll I can and will do is to apply the law in strict conformity with the Rome Statute’.²⁶ Her predecessor, Prosecutor Luis Moreno-Ocampo regularly adopted the same stance in public statements: ‘my duty is to apply the law without political considerations’.²⁷ He emphasised this stance several times.²⁸ The prosecutor informs us that her work is based only on the law and has nothing to do with preferences, policies and interests of states. Former International Criminal Tribunal for the former Yugoslavia (ICTY) Prosecutor Louise Arbour argues that ‘not only must the Prosecutor stand apart from such [political] considerations, he or she must stand above them, and be fully prepared without fear or favour to contradict them or to challenge political pressures which may seek to influence the course of justice’.²⁹ In addition to this, Human Rights Watch (HRW) also strongly argue that ‘[t]he prosecutor should always attempt to steer clear of such politicization of his role, and should certainly not adopt a construction of “the interests of justice” that would favour such politicization’.³⁰

It is true that most of the current debates about the work of the Prosecutor revolved around the question of prosecutorial discretion. However, discretion is not only exercised on the basis of an authorisation by the law. It can also be exercised as a result of systematic indeterminacy. As will be analysed in Chapter 2, there may be a degree of discretion that might be justifiably exercised by decision makers when applying legal categories. The indeterminate, ambiguous or open-ended meaning of these legal norms, where no further legal rules or guiding factors exist to elucidate or define them, may allow decision makers to exercise this sort of discretion. Professor H. L. A. Hart refers to this sense of discretion when he argues that an ‘open texture’ at the borderlines of legal rules is inevitable.³¹ He opines that legal rules cannot always solve all problems. The characterisation of the legal rules of being ‘open-textured’ allows for a space of discretion to be followed. As Kent Greenawalt puts it, ‘since classification by human language cannot provide clear answers to each of the infinite variety of factual situations, some uncertainty about the application of rules is unavoidable’.³² Thus, by applying the legal rules, Marisa Iglesias Vila argues, there will be a space for discretion to be exercised.³³

In the above sense of discretion and within the context of the ICC, the existing literature has paid scant attention and made superficial reference to this sense of discretion, but also without a comprehensive analysis or explanation. William A. Schabas, for example, states that the legal criteria of initiating a proprio motu investigation ‘provide enormous space for highly discretionary determinations’.³⁴ Kaveri Vaid makes reference to the possibility of exercising discretion when applying legal categories. In taking up this issue of the open-ended meaning of the gravity threshold issue, Vaid emphasises that the open-endedness and substantive flexibility of ‘sufficient gravity’ provide the prosecutor with ‘some degree of discretion’.³⁵ She states that gravity is ‘an exceptionally flexible concept’ that is open for varied interpretations ‘in many different and plausible ways’.³⁶ The opportunity of exercising discretion in this context allows the prosecutor to choose among alternative interpretations. To her, indeterminacy of the concept gives the prosecutor a power to claim authority as to which correct interpretations will be taken when deciding whether to initiate an investigation or not. Therefore, ‘[s]uch interpretive autonomy, when coupled with the flexibility of the concept itself, strongly resembles discretion’.³⁷ However, she does not provide a theoretical and legal context for this discretion.

In examining the concept of discretion, the book will, therefore, demonstrate how the ICC Prosecutor’s interpretation of this indeterminate threshold of ‘sufficient gravity’ has also involved the exercise of discretion. The usage of this discretion needs to be distinguished from the classical meaning of prosecutorial discretion and its usages. Prosecutorial discretion permits the prosecutor to exercise a choice having satisfied the legal requirements that the Statute requires for initiating an investigation or prosecuting a case. What distinguishes this particular prosecutorial discretion is two properties – that it is a power authorised by the law and allows decision makers to exercise a choice. So, decision makers here exercise this discretion as a sort of power, authorised either explicitly or implicitly by the law. These two properties confer on this type of discretion its strong and absolute character. For this purpose, Article 53 (1)(c) and (2)(c) and Article 15 (1) and (3) will be fully examined. The Article 53 (1)(c) and (2)(c) ‘interests of justice’ provisions explicitly authorise the prosecutor to exercise such discretion. Luc Cote says this criterion has ‘yet to be defined in the sphere of international criminal law, where they are called upon to play an important role in the exercise of prosecutorial discretion’.³⁸ The Article 15 proprio motu power of the prosecutor may arguably permit the prosecutor to exercise prosecutorial discretion.

The opportunity of exercising discretion ...