The ICC Prosecutor's Discretion Not to Proceed in the 'Interests of Justice'

Abstract

A decision to decline to proceed with a case raises difficult questions about the fair and wise use of prosecutorial powers. The difficulties are intensified at the international level where there are disparate cultures, various legal systems and numerous stakeholders to take into account. Decisions not to proceed are also more controversial when the case in question involves the most serious crimes known to humanity. This is the situation confronting the Prosecutor of the International Criminal Court (ICC). Since the ICC Statute was drafted in Rome in 1998, there has been much discussion about the powers of the Prosecutor. There have been descriptions of his role and broad examinations of his prosecutorial discretion.

At the core of any notion of prosecutorial discretion lies the power to decide whether or not to investigate and prosecute, and, in the case of the ICC, at the heart of this decision is a "nebulous phrase" - the "interests of justice". As the court starts to try its first cases, this phrase must be given content in order to preempt criticism on the grounds of opaque and politicized decision-making. To this end, this article argues for a model of structured discretion, including transparent, ex ante criteria for interpreting the "interests of justice". These criteria would strengthen the legitimacy of the Prosecutor's decisions and build the credibility of the court.

Keywords: ICC, interests of justice, discretion, ICC prosecutor