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Rethinking the Prosecutor’s Discretion at the International Criminal Court
Substantive Limitations and Judicial Control
(2023)
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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 |