The Role and Legal Status of the Prosecutor in International Criminal Trials
147 Pages Posted: 26 Nov 2010 Last revised: 21 Mar 2012
Date Written: November 25, 2010
The study takes a procedural and comparative perspective on the role and legal status of the Prosecutor in the trial stage of international criminal proceedings. Measuring the nature and scope of the prosecutorial powers at trial is facilitated by resort to a binary conceptual framework. On the one hand, the international Prosecutors may be situated on the scale between the 'minister of justice' and 'partisan advocate' ideals. His core function being a 'minister of justice', the Prosecutor enjoys fair trial collaterally to the respective rights of the accused. He has no identifiable clients and represents the abstract 'interests of justice' held equally by the international community as a whole and by the accused, rather than solely or principally by victims. On the other hand, the degree of the Prosecutor's procedural autonomy and discretion in formulating and presenting his case are constrained by judicial competence to control trial. To varying degrees in different international and hybrid criminal jurisdictions, the scope of judicial powers precludes regarding the Prosecutor as a true dominus litis at trial. Through the lenses of this framework, the international Prosecutor's function is overviewed with respect to all milestones of the trial stage, from the preparation for trial to sentencing.
Keywords: prosecutor, international criminal trial, burden of proof, procedural autonomy, minister of justice, managerial judging, opening statements, presentation of evidence, closing arguments, sentencing
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