Prosecutorial discretion

The prosecutor may decide not to initiate an investigation due to lack of a reasonable basis to proceed.113 In instances where the prosecutor had proceeded to an investigation, he/she may reach the conclusion that there is no sufficient legal or factual basis to seek a warrant or summons or the case is inadmissible under Article 17 or the prosecution is not in the interests of justice114 which goes to the heart of his/her independence.

4.1.1 Independence of the prosecutor

The independence of the international criminal court, and particularly the prosecutor, from direct political control is rightly celebrated as a salutary development. The prosecutor’s ability to make individualized considerations based on law and justice, rather than on self - interest or the sheer power of any particular state, transforms the court from a political body festooned with trappings of law to a legal institution with strong political undertones. The independent prosecutor also brings the ICC closer to the best practices of domestic criminal justice systems.115

The power to choose to pursue an investigation and the concomitant power of declination lies at the heart of the independence of the prosecutor, as embodied in the Rome Statute. Other aspects of his/her work may also force the prosecutor to exercise discretion in selecting and prioritizing investigations, and may come with resource constraints which inevitably limit the ICC prosecutor’s ability to pursue all meritorious cases. With respect to investigation, for example, the Rome Statute requires the prosecutor to establish the truth of the events in question and mandates that he/she investigate both incriminating and

112 Schabas (n 10) 131. 113_{Article 53 (1).} 114_{Article 53 (2).} 115 Danner (n 75) above.

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exonerating circumstances equally. This directive suggests that his/her duty to investigate will be quite broad, and presumably more resource intensive than a search focused solely on incriminating evidence.116

In addition to selecting which situations to investigate and deciding how to prioritize investigations, the prosecutor will have the critical task of deciding which individuals to charge with crimes as a result of his investigations. These screening decisions will shape the content of the cases heard by the ICC and will determine the overall direction of the institution. The Rome Statute specifically contemplates that the prosecutor will have discretion over which individuals to charge in connection with any particular violation. The statute under the heading ‘Office of the Prosecutor’, declares that “…shall act independently as a separate organ of the Court”.117 No external entity can unduly direct the prosecutor to charge cases against particular individuals.

The states that negotiated the Rome Statute elected to create a prosecutor with a greater amount of independence and simultaneously constructed a complex pre-trial procedure that endows a pre-trial chamber with significant oversight over the prosecutorial activities. Even with these checks and balances, the prosecutor retains a significant amount of discretion in his/her investigatory, screening, charging and admissibility determination.118

4.1.2. Sufficient basis to prosecute

In principle, investigations should lead to a prosecution but a prosecutor may decide after investigating not to proceed with such prosecution. This may be manifested in the fact that the prosecutor has not gathered sufficient evidence to warrant a prosecution. The determination is similar in some respect to that regarding the decision to initiate an investigation, which is governed by Article 53 (1). The test under Article 53 (2) also consists of three elements and although they are roughly parallel to those of Article 53 (1), there are some significant distinctions:

“a) The test that the Prosecutor is to apply under Article 53 (2) (a) is slightly different from that of Article 53 (1) (a). In concluding not to proceed to prosecute a case, the Prosecutor is supposed to determine that there is ‘not a sufficient basis’ for a prosecution. In Article 53 (1), the test is ‘no reasonable basis.’ The nuance in language suggests that the test for prosecution is somewhat more demanding and is formulated more rigorously. Whereas under Article 53 (2) the requirement is ‘a sufficient legal or factual basis to seek a warrant or summons’. Thus, the Prosecutor should consider not only the formal jurisdictional issues, but also such matters as the availability of evidence and the likelihood of compelling defenses being raised.

116 _{Danner (n 75) 416.} 117 _{Article 42 (1).} 118

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b) The Prosecutor is to consider the admissibility of the case. The language in Article 53 (2) (b) is slightly different, demanding that the case ‘is admissible’, whereas under Article 53 (1) (b), the Prosecutor is to consider whether the ‘case is or would be admissible’. This reflects the fact that the Prosecutor is at a different stage in his work under each provision.

c) In deciding whether to prosecute, the question to be asked is if this is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrators, and his or her role in the alleged crime. Again then, the test is more demanding and the Prosecutor is explicitly required to consider specific issues, although the ultimate decision remains discretionary. Whereas under Article 53 (1) (c), gravity and the interests of victims are presented as a counter weight to the interests of justice, under Article 53 (2) (c) the word ‘nonetheless’ is absent and the various factors are presented in a more neutral manner; as if they may contribute to the ‘interests of justice.’

d) An overarching and additional element is all circumstances and this is to include the age or infirmity of the alleged perpetrators. That the two factors-age and infirmity are listed together and they suggest humanitarian concerns. But there may also be practical ones and the Prosecutor might consider it a waste of resources to proceed where there is a realistic chance that an accused person might not be able to complete a prolonged trial because of illness or death”.119