Original scientific paper
Discretionary Power of the Prosecutor of the International Criminal Court to Withdraw from Investigation and Criminal Prosecution in the Interest of Justice (Art. 53 of the Rome Statute)
Marissabell Škorić
Abstract
The author of the paper analyzes discretionary power of the Prosecutor of the International Criminal Court not to initiate an investigation or criminal prosecution, on the basis of Article 53, section 1, item (c) of the Rome Statute, when he or she determines that its initiation would not serve the interest of justice. This power of the Prosecutor has provoked a series of debates, particularly because the Rome Statute does not determine in detail the content of the term interests of justice, which is specially analyzed in the paper. Within the framework of the term interest of justice, special attention is paid to the question whether this term is limited only to retributive justice or in its interpretation a broader concept of justice should be taken into account which would include in itself recognition, under specified conditions, of the effects of amnesty as alternative criminal prosecution.
The results of the analysis indicate that the creators of the Rome Statute have left to the Prosecutor prosecutorial discretion to decide whether investigation and criminal prosecution will be initiated or, in order not to endanger the development of democracy in the respective country, to withdraw from them. Such prosecutorial discretion of the Prosecutor whose decision should be based on political criteria requires more precise regulation which is missing for now. In this respect, an annex to Article 53, section 1, item (c) and section 2, item (c) is suggested in order to make clear and doubtless that the most responsible perpetrators of crime within the jurisdiction of the ICC will be prosecuted and punished, that is, that the Prosecutor of the ICC may not withdraw from criminal prosecution against the highest ranking leaders and main motivators of crime from the jurisdiction of the Court. For other perpetrators of crime, the decision of the Prosecutor not to initiate criminal prosecution may be acceptable, but only if it satisfies the criteria determined in advance and equal for all. In this regard, it is proposed to make and announce guidelines which will remove or at least significantly reduce possible doubts in the justification and legitimacy of the Prosecutor’s decision not to prosecute perpetrators of the most serious crimes from the jurisdiction of the Court.
Keywords
prosecutor of the International Criminal Court; interest of justice; amnesties
Hrčak ID:
13317
URI
Publication date:
20.6.2007.
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