Rethinking the Prosecutor's Discretion at the International Criminal Court. Substantive Limitations and Judicial Control

The Prosecutor of the International Criminal Court is the first prosecutor attached to a permanent international criminal court and is responsible for investigating situations where international crimes appear having been committed (genocide, crimes against humanity, war crimes and crime of aggression). She is in charge of prosecuting the alleged perpetrators of these crimes before the Court. The traditional contrast between those national systems applying the principle of mandatory prosecution and those applying the discretionary principle, raised the question on the applicable model in the international criminal justice system. The traditional selectivity characterising International Criminal Law, the limited resources, the tendential use of procedural mechanisms familiar to common law systems before international criminal tribunals are some of the reasons leading scholars to attribute discretion to the Prosecutor of the International Criminal Court as well. The purpose of this work is understanding the concept of discretion, determining whether the Prosecutor effectively enjoys this kind of discretion and possibly to what extent. The statutory framework does not necessarily point towards a strong discretionary power of the Prosecutor, and the practice reveals that the discretion granted to the Prosecutor in the last years seems sometimes having jeopardised the effectiveness of her activity. In the first place, the substantive limits to the Prosecutor’s activity are the object of analysis, in particular the concept of gravity and interests of justice. An objective definition of gravity and a restrictive interpretation of the parameters possibly leading to a decision not to investigate or prosecute in the interests of justice are the first instrument to verify the correctness of the Prosecutor’s action and to ensure a more stable and foreseeable basis to it. The rights of the defence may take advantage from it as well. In the second place, a more pervasive judicial control especially at the pre-trial stage should be considered a safeguard and an aid rather than an obstacle to the Prosecutor’s activity.