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Rethinking the Prosecutor’s Discretion at the International Criminal Court

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Governa, J. (2023). Rethinking the Prosecutor’s Discretion at the International Criminal Court. Substantive Limitations and Judicial Control. Duncker & Humblot. https://doi.org/10.3790/978-3-428-58818-3
Governa, Jacopo. Rethinking the Prosecutor’s Discretion at the International Criminal Court: Substantive Limitations and Judicial Control. Duncker & Humblot, 2023. Book. https://doi.org/10.3790/978-3-428-58818-3
Governa, J (2023): Rethinking the Prosecutor’s Discretion at the International Criminal Court: Substantive Limitations and Judicial Control, Duncker & Humblot, [online] https://doi.org/10.3790/978-3-428-58818-3

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Rethinking the Prosecutor’s Discretion at the International Criminal Court

Substantive Limitations and Judicial Control

Governa, Jacopo

Beiträge zum Internationalen und Europäischen Strafrecht / Studies in International and European Criminal Law and Procedure, Vol. 52

(2023)

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About The Author

Jacopo Governa is currently Assistant Lawyer at the European Court of Human Rights. Previously, he was employed as Assistant Legal Officer at the Chambers of the International Criminal Court. He holds a Master’s Degree in Law from the University of Verona (Italy) and a PhD in International Criminal Law from the University of Verona, where he has been teaching assistant in the courses of criminal law and international criminal law, and the University of Göttingen (Germany). His research mainly focuses on Italian and European criminal law, transnational and international criminal law, international criminal courts, tribunals, and procedure, with particular regard to the role of prosecutorial discretion in international criminal trials.

Abstract

The Prosecutor of the International Criminal Court is the first prosecutor of a permanent international criminal court and is responsible for investigating situations where international crimes appear having been committed and for prosecuting perpetrators of these crimes before the Court. The traditional contrast between those systems applying the principle of mandatory prosecution and those applying the discretionary principle, raised the question on the applicable model in the international criminal justice system. The traditional selectivity characterizing International Criminal Law, the limited resources, and the tendential use of procedural mechanisms familiar to common law systems before international criminal tribunals are some of the reasons leading scholars to attribute discretion to the Prosecutor of the International Criminal Court as well. The purpose of this book is to determine whether the Prosecutor effectively enjoys discretion and possibly to what extent. The statutory framework does not necessarily point towards a strong discretionary power of the Prosecutor, and practice reveals that the discretion granted to the Prosecutor in recent years seems sometimes to have jeopardized the effectiveness of his activities.The Prosecutor of the International Criminal Court is the first prosecutor of a permanent international criminal court and is responsible for investigating situations where international crimes appear having been committed and for prosecuting perpetrators of these crimes before the Court. The traditional contrast between those systems applying the principle of mandatory prosecution and those applying the discretionary principle, raised the question on the applicable model in the international criminal justice system. The traditional selectivity characterizing International Criminal Law, the limited resources, and the tendential use of procedural mechanisms familiar to common law systems before international criminal tribunals are some of the reasons leading scholars to attribute discretion to the Prosecutor of the International Criminal Court as well. The purpose of this book is to determine whether the Prosecutor effectively enjoys discretion and possibly to what extent. The statutory framework does not necessarily point towards a strong discretionary power of the Prosecutor, and practice reveals that the discretion granted to the Prosecutor in recent years seems sometimes to have jeopardized the effectiveness of his activities.

Table of Contents

Section Title Page Action Price
Aknowledgments 5
Inhaltsverzeichnis 7
Abbreviations 13
Introduction 17
Chapter I: Prosecutorial Discretion in National and International Criminal Law 22
Section I: The Concept of Discretion 22
Section II: The Prosecutor in National Legal Systems 35
A. The Mandatory Model 35
I. The Italian System 36
1. Historical Background 37
2. The Initiation of the Prosecution. Introductory Remarks 39
3. The Concept of ˋesercizio dell'azione penale' 40
4. The Function of the Investigations 42
5. The Request for Dispense from Prosecution 45
6. The Judicial Review on the Request for Initiation of the Prosecution 49
7. The Amendment of the Charges 51
II. The German System 51
1. The Initiation of the Prosecution. Introductory Remarks 52
2. The Investigation 53
3. The Charges 55
4. Some Margin for Discretion 56
5. The Proceedings to Compel Public Charges 60
B. The Discretionary Model 60
I. The English System (England and Wales) 61
1. The Investigation 62
2. The Decision on whether to Continue with the Prosecution 63
3. The Discontinuance of the Proceedings after the Initiation of the Trial 65
4. The Control over the Decision to Prosecute 66
5. The Selection of the Charges 67
II. The U.S. System 67
1. The Decision on whether to Prosecute 69
2. The Limits to Discretion 72
3. The Control over the Attorney's Decision 73
4. The Selection of the Charges 74
5. Additional Remarks 74
III. The French System 77
1. The Public Prosecutor: Structure and Role in the Preliminary Stage 79
2. The Public Prosecutor and the Decision not to Prosecute 82
3. The juge d'instruction 83
4. Function of the Public Prosecutor in Instruction 85
5. The Chambre de l'instruction 85
Section III: The Prosecutor in International Criminal Law 86
A. The Prosecutor of the International Military Tribunals 90
B. The Prosecutor of the ad hoc Tribunals 93
I. The Independence 94
II. The Selection of the Cases, Discretion and Limits 95
III. Concluding Remarks 101
C. The Prosecutor of the International Criminal Court 101
I. Historical Background 102
II. The Independence of the Prosecutor and the Legal Framework 107
III. The Initiation of the Investigations: Discretionary or Mandatory? Article 53 of the Statute: an Overview 112
Section IV: Introduction to the Activity of the ICC Prosecutor 118
A. The Jurisdiction of the Court and the Triggering Mechanism 119
I. The State Referral 121
II. The Referral by the UN Security Council 123
III. The proprio motu Investigation under Article 15 of the Statute 126
1. The Content of Article 15 of the Statute 129
2. The Relationship between Article 15 and Article 53 of the Statute 132
B. The Distinction between Situation and Case 135
I. Historical Background 135
II. ˋSituation' and ˋCase' in the Statutory Framework 137
C. The Stages of the Proceedings 142
I. Investigation and Prosecution 142
II. The Preliminary Examination 144
1. The Information 146
2. The Structure and Length of the Examination 148
3. Concluding Remarks 152
Chapter II: The Object of the ICC Prosecutor's Assessment 156
Section I: The Reasonable Basis for the Initiation of an Investigation 159
A. The ˋReasonable Basis' in the chapeau of Article 53 and in Para. (1)(a) 159
B. The Concept of ˋReasonable Basis' 160
C. The ‘Reasonable Basis’ of Article 53‍(1) and the ‘Sufficient Basis’ of Article 53‍(2) 166
Section II: The Jurisdiction 168
Section III: The Admissibility 170
A. The Complementarity Principle 170
B. Article 17‍(1) of the Rome Statute, ‘Issues of Admissibility’ 172
I. Admissibility and Initiation of the Investigation 173
II. Admissibility and Prosecution 178
III. The Complementarity Test 178
IV. The Gravity Test under Article 17 of the Statute 181
1. The Object of the Gravity Assessment 187
a) The Gravity of the Crime 187
b) Gravity in Relation to the Alleged Perpetrator 187
c) The ˋGravity of the Situation' and the ˋGravity of the Case' 195
d) Gravity: The ˋSelective Approach' and the ˋThreshold Approach' 203
2. Conclusions 209
C. The Prosecutorial Strategies: Case Selection and Prioritisation 211
Section IV: The Interests of Justice 218
A. The Interests of Justice in ICL 218
B. The Notion of ˋInterests of Justice' 223
C. The Exceptional Nature of the Interests of Justice Clause and the Presumption in Favour of Investigation and Prosecution 228
D. Relevant Factors in the Assessment of the Interests of Justice 233
I. The Adverb ˋNonetheless' – the First Interpretation 234
II. The Adverb ˋNonetheless' – the Second Interpretation 236
III. The Relevant Factors 237
E. Concluding Remarks 244
Chapter III: The Control over the Activity of the ICC Prosecutor 247
Section I: The Control from External Entities 249
A. The Assembly of the States Parties 249
B. The UN Security Council 251
I. The Security Council's Referral 251
II. The Security Council's Deferral 256
III. The Role of the Security Council with Regards to the Crime of Aggression 261
IV. Concluding Remarks 263
C. The States 265
Section II: Judicial Control under Article 53 of the Statute 268
A. Judicial Control during the Preliminary Examination 270
B. The Authorisation for the Initiation of an Investigation under Article 15 273
I. The Pre-Trial Chamber's Review 274
II. The Chamber's Different Reading of the Information 283
III. The Extent of the Reviewing Power 285
IV. Concluding Remarks 290
V. The Scope of the Authorisation 291
1. The Temporal Limitation 291
2. The Territorial Limitation 294
3. The Material Limitation 295
4. The Personal Limitation 297
5. The Scope of Authorisation with regards to the ˋPotential Cases' 298
6. Concluding Remarks 302
VI. The Possible Issues of a Binding Authorisation 304
C. The Decision not to Investigate or Prosecute and the Chamber's Power of Review 306
I. The Duty to Inform 311
II. The Review of the Prosecutor’s Decision under Article 53‍(3)(a) and (b) 313
III. A Comparison between Article 53‍(3)(a) and (b) 316
IV. The Reviewing Procedure 319
V. The Prosecutor’s Autonomous Reconsideration under Article 53‍(4) 329
VI. Concluding Remarks 332
D. The Judicial Control during the Investigations 335
Section III: Judicial Control under Article 58 of the Statute 336
Section IV: Judicial Control under Article 61 of the Statute 337
A. The Concept of ˋSubstantial Grounds to Believe' 339
B. The Purpose of the Confirmation of the Charges 341
I. The Protection from Wrongful Charges 342
II. The Determination of the Scope of the Trial 343
1. The Concept of Charge 349
2. The Facts and Circumstances, the Subsidiary Facts and the Evidence 351
C. The Decision Declining to Confirm the Charges and the Decision Adjourning the Hearing 358
D. The Continuation of the Investigations after the Confirmation 360
E. The Amendment and the Withdrawal of the Charges 364
I. Regulation 55 of the Regulations of the Court 369
1. The Recharacterisation vis-à-vis the Charges 370
2. The Role of the Prosecutor in the Recharacterisation 378
F. Concluding Remarks 382
Section V: Judicial Control throughout the Trial: The No Case to Answer Procedure 383
A. The Ruling of the ˋNo Case to Answer' in Common Law Systems 384
B. The Ruling of Analogous Situations in Civil Law Systems 387
C. The Ruling of the ˋNo Case to Answer' in International Tribunals 388
I. The First Practice of the Trial Chambers of the ICTY 390
II. The Jurisprudence of the Appeals Chamber of ICTY 393
III. The Following Jurisprudence 395
D. The No Case to Answer in the Practice of the ICC 397
I. The Ruto and Sang Case 398
II. The Ntaganda Case 402
III. The Gbagbo and Blé Goudé Case 402
IV. Outstanding Issues 408
1. The Adversarial Nature of the Procedure 408
2. The Risk of Pre-Judging the Case 409
3. The Nature of the Decision 410
4. The Standard of Review 410
5. The Consistency of the No Case to Answer with the Statute 413
V. Concluding Remarks 413
Conclusions 416
Abstract (English) 431
Abstract (Italian) 432
Abstract (German) 433
Bibliography 434
Subject Index 450