Initiation of Investigations and Selection of Cases

TOWARDS CODIFICATION OF GENERAL RULES AND PRINCIPLES OF INTERNATIONAL CRIMINAL PROCEDURE, Goran Sluiter, ed., Oxford University Press, 2012

Temple University Legal Studies Research Paper No. 2012-05

61 Pages Posted: 5 Feb 2012 Last revised: 4 Oct 2013

Margaret M. deGuzman

Temple University - James E. Beasley School of Law

William A. Schabas

University College, Galway (UCG) - Faculty of Law; Criminal Law Forum; Irish Centre for Human Rights

Date Written: February 3, 2012

Abstract

Decisions about when to initiate investigations and which cases to prosecute are among the most difficult and contested choices international courts face. This chapter is part of a project aimed at developing general rules and principles of international criminal procedure. Its central aim therefore is to ascertain whether any general rules or principles govern decisions about which situations to investigate and which cases to prosecute. The chapter scans the available sources for principles or rules that either limit the discretion of decision-makers with regard to selection decisions or mandate certain considerations or courses of action. Perhaps unsurprisingly, we identify only a few applicable general principles, concluding instead that such selection decisions are largely a matter of policy. The most important principle that limits discretion in selection decisions is that of equality along with its corollary, the prohibition against invidious discrimination, and the related principle of impartiality. The law and practice also reveal a principle that charges should not be brought without sufficient evidence as well as a developing principle of independence – prosecutors should not take instruction from outside sources with regard to particular cases. After identifying these principles, we briefly suggest some issues that should be more fully considered as the law and practice related to selection decisions develops. In particular, additional attention should be focused on the manner in which selection decisions contribute to accomplishing and prioritizing the various goals and objectives of international criminal law.

Keywords: international criminal law, international criminal court, selection, discretion

JEL Classification: K14, K33

Suggested Citation

deGuzman, Margaret M. and Schabas, William A., Initiation of Investigations and Selection of Cases (February 3, 2012). TOWARDS CODIFICATION OF GENERAL RULES AND PRINCIPLES OF INTERNATIONAL CRIMINAL PROCEDURE, Goran Sluiter, ed., Oxford University Press, 2012; Temple University Legal Studies Research Paper No. 2012-05. Available at SSRN: https://ssrn.com/abstract=1999003

Margaret M. DeGuzman (Contact Author)

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States

William A. Schabas

University College, Galway (UCG) - Faculty of Law ( email )

Newcastle Road
Galway
Ireland

Criminal Law Forum

Netherlands

Irish Centre for Human Rights ( email )

Galway
Ireland

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