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
61 Pages Posted: 5 Feb 2012 Last revised: 4 Oct 2013
Date Written: February 3, 2012
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: Suggested Citation