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Volumn 3, Issue 1, 2005, Pages 124-144

Prosecutorial discretion before national courts and international tribunals

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EID: 26444526222     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/3.1.124     Document Type: Conference Paper
Times cited : (35)

References (102)
  • 1
    • 84888906714 scopus 로고    scopus 로고
    • A version of this article was presented as a lecture in the Guest Lecture Series of the Office of the Prosecutor of the International Criminal Court, The Hague, Netherlands, 19 December
    • A version of this article was presented as a lecture in the Guest Lecture Series of the Office of the Prosecutor of the International Criminal Court, The Hague, Netherlands, 19 December 2003.
    • (2003)
  • 2
    • 84888925418 scopus 로고    scopus 로고
    • note
    • This is particularly significant with respect to the Prosecutor of the International Criminal Court (ICC) who, if he decides to investigate, must 'investigate incriminating and exonerating circumstances equally'. See Art. 54(1)(a) ICCSt. This suggests that the cost involved in the investigation is enormous.
  • 3
    • 84888907728 scopus 로고    scopus 로고
    • The Statement of Prosecution Policy and Practice
    • Department of Justice, (Department of Justice, Hong Kong Special Administrative Region)
    • Department of Justice, The Statement of Prosecution Policy and Practice (Department of Justice, Hong Kong Special Administrative Region, 2002).
    • (2002)
  • 4
    • 0142169499 scopus 로고    scopus 로고
    • 'Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court'
    • According to Danner, at 511, 'The Court will face serious challenges that will question its independence from political institutions, its legitimacy as an authentic interpreter of international norms, and its accountability to the states that created it and whose nationals face prosecution within its courtrooms'
    • A.M. Danner, 'Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court', 97 American Journal of International Law (AJIL) (2003) 510. According to Danner, at 511, 'The Court will face serious challenges that will question its independence from political institutions, its legitimacy as an authentic interpreter of international norms, and its accountability to the states that created it and whose nationals face prosecution within its courtrooms'.
    • (2003) American Journal of International Law (AJIL) , vol.97 , pp. 510
    • Danner, A.M.1
  • 5
    • 84888897985 scopus 로고    scopus 로고
    • note
    • This is true in Argentina, China, the Czech Republic, France, Germany, Japan, the Netherlands, Romania, the Russian Federation, Sweden and the United States.
  • 6
    • 84888901961 scopus 로고    scopus 로고
    • 'The Prosecutor's Authority Over Investigations in Common Law Jurisdictions'
    • This is true in most Commonwealth countries as well as in Austria, Denmark, Finland, Ireland and Norway. See generally paper presented at the 17th Annual Conference of the International Society for the Reform of Criminal Law, The Hague, Netherlands, 24-28 August
    • This is true in most Commonwealth countries as well as in Austria, Denmark, Finland, Ireland and Norway. See generally T. Krone, 'The Prosecutor's Authority Over Investigations in Common Law Jurisdictions', paper presented at the 17th Annual Conference of the International Society for the Reform of Criminal Law, The Hague, Netherlands, 24-28 August 2003.
    • (2003)
    • Krone, T.1
  • 7
    • 84888907014 scopus 로고    scopus 로고
    • See generally the Prosecution of Offences Act 1985
    • See generally the Prosecution of Offences Act 1985.
  • 8
    • 84888901312 scopus 로고    scopus 로고
    • note
    • Inspired by the principle of legality (Legalitätsprinzip), s. 152(2) of the German Code of Criminal Procedure provides that: 'Except as otherwise provided by law, the public prosecution office shall be obliged to take action in the case of all criminal offences which may be prosecuted, provided there are sufficient factual indications' (emphasis added).
  • 11
    • 27244456265 scopus 로고    scopus 로고
    • 'International Criminal Justice is Coming Home: The New German Code of Crimes Against International Law'
    • See generally
    • See generally G. Werle and F. Jessberger, 'International Criminal Justice is Coming Home: The New German Code of Crimes Against International Law', 13 Criminal Law Forum (2002) 191.
    • (2002) Criminal Law Forum , vol.13 , pp. 191
    • Werle, G.1    Jessberger, F.2
  • 12
    • 27244456265 scopus 로고    scopus 로고
    • 'International Criminal Justice is Coming Home: The New German Code of Crimes Against International Law'
    • See
    • See Werle and Jessberger, ibid.
    • (2002) Criminal Law Forum , vol.13 , pp. 191
    • Werle, G.1    Jessberger, F.2
  • 13
    • 84888923270 scopus 로고
    • Sir then Attorney-General of Great Britain, stated the British position in as follows: 'It has never been the rule in this country - I hope it never will be - that suspected criminal offences must automatically be the subject of prosecution... [T]he public interest is still the dominant consideration'. Col. 681
    • Sir Hartley Shawcross, then Attorney-General of Great Britain, stated the British position in 1951 as follows: 'It has never been the rule in this country - I hope it never will be - that suspected criminal offences must automatically be the subject of prosecution... [T]he public interest is still the dominant consideration'. House of Commons Debates, Vol. 483, Col. 681.
    • (1951) House of Commons Debates , vol.483
    • Shawcross, H.1
  • 14
    • 84888907073 scopus 로고    scopus 로고
    • note
    • For example, the Constitution of Botswana, s. 51(3) reads as follows: The Attorney-General shall have power in any case in which he considers it desirable to do so: To institute and undertake criminal proceedings against any person before any court [other than a court-martial] in respect of any offence alleged to have been committed by that person; to take over and continue any such criminal proceedings that have been instituted or undertaken by any other person or authority; and to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself or any other person or authority' (emphasis added).
  • 15
    • 84888926566 scopus 로고    scopus 로고
    • note
    • See, for example, the Botswana Criminal Procedure and Evidence Act, Chapter 08.02, s. 14, which provides as follows: 'In all cases where the Attorney-General declines to prosecute for an alleged offence, any private party who can show some substantial and peculiar interest in the issue of the trial, arising out of some injury which he individually has suffered by the commission of the offence, may prosecute in any court competent to try the offence, the person alleged to have committed it'.
  • 16
    • 84888885251 scopus 로고    scopus 로고
    • note
    • Ibid.
  • 17
    • 84888903582 scopus 로고
    • For example, see Attorney-General
    • For example, see Raymond v. Attorney-General [1982] 1 Queen's Bench (QB) 839.
    • (1982) Queen's Bench (QB) , vol.1 , pp. 839
    • Raymond, V.1
  • 18
    • 84888911887 scopus 로고    scopus 로고
    • note
    • Some countries do, however, require the prosecutor to seek and obtain leave of the court where a private party instituted the proceedings. For example, see the Constitution of Uganda, Art. 120(3)(d), which empowers the Director of Public Prosecutions to discontinue at any stage before judgment proceedings instituted by himself or any other person or authority, save that he 'shall not discontinue any proceedings commenced by another person or authority except with the consent of the court'. This provision was included in the 1995 Constitution to guard against abuses.
  • 19
    • 84888931132 scopus 로고    scopus 로고
    • note
    • See the English case of Gouriet v. Union of Post Office Workers [1978] Appeal Cases (AC) 435, at 487, where Viscount Dilhorne said: 'The Attorney-General has many powers and duties. He may stop any prosecution on indictment by entering a nolle prosequi. He merely has to sign a piece of paper saying that he does not wish the prosecution to continue. He need not give any reasons. He can direct the institution of a prosecution and direct the Director of Public Prosecutions to take over the conduct of any criminal proceedings and he may tell him to offer no evidence. In the exercise of these powers he is not subject to direction by his ministerial colleagues or to control and supervision by the courts' (emphasis added).
  • 20
    • 84888916822 scopus 로고
    • See the South African case of R v. Sikumba South 125 at
    • See the South African case of R v. Sikumba 3 South Africa Law Reports (1955), 125 at 127,
    • (1955) Africa Law Reports , vol.3 , pp. 127
  • 21
    • 84888928537 scopus 로고    scopus 로고
    • note
    • where J. De Villiers said: 'The prosecutor, as the representative of the Solicitor-General, is the dominus litis. It is within his powers to withdraw the charge at any stage of the proceedings and no court can prevent him, just as no court can force him to prosecute'.
  • 22
    • 84888888309 scopus 로고    scopus 로고
    • See generally Directory of Prosecution Services (International Association of Prosecutors)
    • See generally Directory of Prosecution Services (International Association of Prosecutors, 1999).
    • (1999)
  • 23
    • 84888914530 scopus 로고    scopus 로고
    • note
    • In R v. Commissioner of Police of the Metropolis, Ex Parte Blackburn (No. 1) [1968] 2 QB 118, at 135-136, Lord Denning stated the position well when he was commenting on the role of the Commissioner of Police in initiating criminal proceedings. He said: 'I hold it to be the duty of the Commissioner of the Police of the Metropolis, as it is of every chief constable, to enforce the law of the land.... He must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought. But in all these things he is not the servant of anyone, save of the law itself. No Minister of the Crown can tell him that he must, or must not prosecute this man or that one. Nor can any police authority tell him to. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone'.
  • 24
    • 84888903846 scopus 로고
    • echoed the same principle in the Australian case of Clyne v. Attorney-General 92 at when he said that: 'Parliament has given to the Director [of Public Prosecution] the power to determine for himself whether an indictment shall be filed and whether a prosecution shall be discontinued. The evident intention was to divorce the Government, and the Attorney-General in particular, from day-to-day decision making in those areas'. The constitution of many former British dependencies echo the principles enunciated by Denning. For example, Art. 94(6) of the Constitution of Jamaica provides that: 'In the exercise of the functions conferred on him by this article, the Director of Public Prosecutions shall not be subject to the direction and control of any person or authority'
    • Wilcox J. echoed the same principle in the Australian case of Clyne v. Attorney-General (1984) 55 Australian Law Reports 92, at 99, when he said that: 'Parliament has given to the Director [of Public Prosecution] the power to determine for himself whether an indictment shall be filed and whether a prosecution shall be discontinued. The evident intention was to divorce the Government, and the Attorney-General in particular, from day-to-day decision making in those areas'. The constitution of many former British dependencies echo the principles enunciated by Denning. For example, Art. 94(6) of the Constitution of Jamaica provides that: 'In the exercise of the functions conferred on him by this article, the Director of Public Prosecutions shall not be subject to the direction and control of any person or authority'.
    • (1984) Australian Law Reports , vol.55 , pp. 99
    • Wilcox, J.1
  • 25
    • 84888888080 scopus 로고    scopus 로고
    • note
    • See also s. 51(7) of the Constitution of Botswana and Art. 120(7) of the Constitution of Uganda.
  • 26
    • 84888885903 scopus 로고    scopus 로고
    • note
    • See, for example, s. 113 of the Constitution of Botswana, Arts 95 and 96 of the Constitution of Jamaica and Art. 120 of the Constitution of Uganda.
  • 27
    • 84888885224 scopus 로고
    • Article 13(b) of the UN Guidelines on the Role of Prosecutors specifically provide that in the performance of their duties, prosecutors shall 'Protect the public interest, act with objectivity, take proper account of the position of the suspect and the victim, and pay attention to all relevant circumstances, irrespective of whether they are to the advantage or disadvantage of the suspect' (Report of the Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders UN doc. A/CONF.144/28, at)
    • Article 13(b) of the UN Guidelines on the Role of Prosecutors specifically provide that in the performance of their duties, prosecutors shall 'Protect the public interest, act with objectivity, take proper account of the position of the suspect and the victim, and pay attention to all relevant circumstances, irrespective of whether they are to the advantage or disadvantage of the suspect' (Report of the Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders. UN doc. A/CONF.144/28, 1990, at 117).
    • (1990) , pp. 117
  • 28
    • 84888921102 scopus 로고    scopus 로고
    • note
    • In some jurisdictions, the constitutions provide broad guidelines under which the discretion is to be exercised. For example, the Art. 120(5) of the Constitution of Uganda provides that: 'In exercising his powers under this article, the Director of Public Prosecutions shall have regard to the public interest, the interest of the administration of justice and the need to prevent abuse of legal process'. The Constitution of Ghana is not specific on prosecutorial discretion. It nevertheless provides general principles that repositories of discretionary power ought to exercise it. Article 296 provides in part as follows: '(a) Discretionary power shall be deemed to imply a duty to be fair and candid; (b) the exercise of discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with the due process of law'. These provisions are addressed to public authorities vested with discretionary power. This writer sees no reason why they cannot be applied to the Attorney-General when he is exercising his or her prosecutorial discretion.
  • 29
    • 84888907007 scopus 로고    scopus 로고
    • note
    • Article 15 of the UN Guidelines on the Role of Prosecutors provides that: 'Prosecutors shall give due attention to the prosecution of crimes committed by public officials, particularly corruption, abuse of power, grave violations of human rights and other crimes recognized by international law and, where authorized by law or consistent with local practice, the investigation of such offences'.
  • 30
    • 84888892432 scopus 로고
    • Article 13(b) of the UN Guidelines on the Role of Prosecutors specifically provide that in the performance of their duties, prosecutors shall 'Protect the public interest, act with objectivity, take proper account of the position of the suspect and the victim, and pay attention to all relevant circumstances, irrespective of whether they are to the advantage or disadvantage of the suspect' (Report of the Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders UN doc. A/CONF.144/28, at)
    • See supra note 23.
    • (1990) , pp. 117
  • 31
    • 84888911367 scopus 로고    scopus 로고
    • note
    • Article 14 of the UN Guidelines on the Role of Prosecutors provides that: 'Prosecutors shall not initiate or continue prosecution, or shall make every effort to stay proceeding, when an impartial investigation shows the charge to be unfounded'.
  • 32
    • 84888914309 scopus 로고
    • Article 13(b) of the UN Guidelines on the Role of Prosecutors specifically provide that in the performance of their duties, prosecutors shall 'Protect the public interest, act with objectivity, take proper account of the position of the suspect and the victim, and pay attention to all relevant circumstances, irrespective of whether they are to the advantage or disadvantage of the suspect' (Report of the Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders UN doc. A/CONF.144/28, at)
    • See supra note 23.
    • (1990) , pp. 117
  • 33
    • 84888922189 scopus 로고    scopus 로고
    • note
    • An example of the prosecutor's difficulty is the case involving Mr Jacob Zuma, the Deputy President of South Africa. In 2003, at the conclusion of an investigation into a multi-billion-rand arms deal between certain French companies and South Africa, the National Director of Public Prosecutions, Mr Bulelani Ngcuka, concluded that Zuma was implicated. He also concluded that there was a prima facie case against Zuma and that he had 'a case to answer'. In spite of these conclusions, the Director declined to prosecute, ostensibly because he was not sure whether the prosecution's case was strong enough as to yield a conviction. On deciding not to prosecute Zuma, he said: 'In a case of this nature, we cannot prosecute if it is not sufficiently winnable. At the same time, given the public interest in the matter, we cannot continue with a prolonged investigation that casts a shadow over the deputy president of the country, whilst we are not sure of the outcome.... We have concluded that, whilst there is a prima facie case of corruption against the deputy president, our prospects of success are not so strong enough. That means that we are not sure if we have a winnable case. Accordingly, we have decided not to prosecute the deputy president'.
  • 34
    • 84888899830 scopus 로고    scopus 로고
    • 'Zuma case unwinnable, says Scorpion boss'
    • See 23 August available online at www.iol.co.za (visited January, 2005). The Director's decision generated a public furore and considerable controversy as to what the effect of a prima facie case is. Has Visser, an expert in private law at the University of Pretoria, stated: 'If a prosecutor has genuine prima facie evidence, he goes to court. If his evidence would not stand up in court, it is not a prima facie quality'. 'Ngcuka spoke in "riddles" about Zuma', Mail & Guardian online, Wednesday, 3 September 2003. Another lawyer remarked that the Director's decision smacked of 'a political decision' and not a legal one
    • See M. le Roux, 'Zuma case unwinnable, says Scorpion boss', IOL South Africa, 23 August 2003, available online at www.iol.co.za (visited January, 2005). The Director's decision generated a public furore and considerable controversy as to what the effect of a prima facie case is. Has Visser, an expert in private law at the University of Pretoria, stated: 'If a prosecutor has genuine prima facie evidence, he goes to court. If his evidence would not stand up in court, it is not a prima facie quality'. 'Ngcuka spoke in "riddles" about Zuma', Mail & Guardian online, Wednesday, 3 September 2003. Another lawyer remarked that the Director's decision smacked of 'a political decision' and not a legal one.
    • (2003) IOL South Africa
    • le Roux, M.1
  • 35
    • 84888907910 scopus 로고    scopus 로고
    • 'Selective Prosecution a Bad Precedent'
    • See 3 September
    • See F.N. Moya, 'Selective Prosecution a Bad Precedent', Mail & Guardian online, 3 September 2003.
    • (2003) Mail & Guardian Online
    • Moya, F.N.1
  • 36
    • 84888888171 scopus 로고    scopus 로고
    • Implementation of the Rome Statute of the ICC, Act no. 27 of s. 3§
    • Implementation of the Rome Statute of the ICC, Act no. 27 of 2002, s. 5, 3§.
    • (2002) , pp. 5
  • 37
    • 84888923162 scopus 로고    scopus 로고
    • Implementation of the Rome Statute of the ICC, Act no. 27 of s. 5§
    • Ibid., s. 5, 5§.
    • (2002) , pp. 5
  • 38
    • 84888932104 scopus 로고    scopus 로고
    • note
    • Section 5, 3§ of the Act also vests the South African courts with universal jurisdiction in the following circumstances: 'In order to secure the jurisdiction of a South African court for the purpose of this Chapter, any person who commits a crime [within the ICC Statute] contemplated in subsection (1) outside the territory of the Republic, is deemed to have committed that crime in the territory of the Republic if: that person is a South African citizen; or that person is not a South African but is ordinarily resident in the Republic; or that person, after commission of the crime, is present in the territory of the Republic; or that person has committed the said crime against a South African citizen or against a person who is ordinarily resident in the Republic'.
  • 39
    • 84888887553 scopus 로고    scopus 로고
    • Article 179(5)
    • Article 179(5).
  • 40
    • 84888887602 scopus 로고    scopus 로고
    • note
    • See Art. 13(d) of the UN Guidelines on the Role of Prosecutors, which provides that in the performance of their duties, prosecutors shall: 'Consider the views and concerns of victims when their personal interests are affected and ensure that victims are informed of their rights in accordance with the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.'
  • 41
    • 84888920161 scopus 로고
    • Article 13(b) of the UN Guidelines on the Role of Prosecutors specifically provide that in the performance of their duties, prosecutors shall 'Protect the public interest, act with objectivity, take proper account of the position of the suspect and the victim, and pay attention to all relevant circumstances, irrespective of whether they are to the advantage or disadvantage of the suspect' (Report of the Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders UN doc. A/CONF.144/28, at)
    • See supra note 23.
    • (1990) , pp. 117
  • 42
    • 84888886023 scopus 로고    scopus 로고
    • 'Convergence of Criminal Justice Systems: Building Bridges - Bridging the Gaps'
    • See generally paper presented at the 17th Conference of the International Society of the Reform of Criminal Law, The Hague, the Netherlands, 24-28 August
    • See generally N. Jorg, 'Convergence of Criminal Justice Systems: Building Bridges - Bridging the Gaps', paper presented at the 17th Conference of the International Society of the Reform of Criminal Law, The Hague, the Netherlands, 24-28 August 2003.
    • (2003)
    • Jorg, N.1
  • 43
    • 84888912782 scopus 로고    scopus 로고
    • note
    • See generally the Uganda case of In the Matter of Habeas Corpus and In the Matter of an Applicant Joyce Lwebuga wife of Lwebuga, an Unconvicted Prisoner at Njabule Prison, H.Ct. Misc. Cause no. 11 of 1963 (unreported). Eriyaabu Lwebuga was the leader of the Bawejjere (Common Men's) Party. On 21 January 1963, he appeared before the Buganda Principal Court, charged with sedition and with inciting the public against the Buganda government, then led by Katikkiro (Premier) Michael Kintu. The central government Director of Public Prosecutions ordered the Principal Court to drop the charges against Lwebuga and to release him forthwith. The Principal Court ignored the order. Thereupon, Lwebuga's wife applied to the Uganda High Court for a writ of habeas corpus, seeking his release. For the Principal Court and for the Buganda government, it was contended that the Director of Public Prosecutions did not exercise his discretion properly. For example, he did not give reasons for his order. He also did not take the elementary step of calling for and perusing the Buganda government police docket to satisfy him whether there were merits in the case against Lwebuga. To the Buganda government, the Director of Public Prosecutions appeared to be acting under the influence of the central government which was at the time wooing Lwebuga to join the ruling (Uganda People's Congress) party. Rejecting these contentions, the High Court held that it was not open to anyone, not even the courts, to question the way the Director of Public Prosecutions exercised his discretion. It accordingly ordered that Lwebuga be released forthwith.
  • 45
    • 84888892984 scopus 로고    scopus 로고
    • 'Quashing Convictions for Pre-Trial Abuse of Process: Breaching Public International Law and Human Rights'
    • See also
    • See also L. Davidson, 'Quashing Convictions for Pre-Trial Abuse of Process: Breaching Public International Law and Human Rights', 58 Cambridge Law Journal (1999), at 461.
    • (1999) Cambridge Law Journal , vol.58 , pp. 461
    • Davidson, L.1
  • 46
    • 84888928400 scopus 로고    scopus 로고
    • note
    • R v. Horseferry Magistrates' Court: Ex Parte Bennett [1994] 1 AC 42, at 62 (emphasis added). An American judge similarly declared: 'This court has inherent supervisory power to dismiss prosecutions in order to deter illegal conduct. The "illegality" deterred by exercise of our supervisory power need not be related to a constitutional or statutory violation.' (cited by the ICTR in Barayagwiza infra note 77). A Canadian court in R v. Conway [1989] 1 Supreme Court Reports, Canada 1659, at 1667 also stated that: 'The prosecution must be set aside not on merits, but because it is tainted to such a degree that to allow it to proceed would tarnish the integrity of the court. The doctrine is one of the safeguards designed to ensure that repression of crime through the conviction of the guilty is done in a way, which reflects our fundamental values as a society. I acknowledge that courts must have the respect of and support of the community in order that the administration of justice may properly fulfill its function...where the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases, then the administration of justice is best served by staying the proceedings.'
  • 47
    • 84888928554 scopus 로고    scopus 로고
    • note
    • Ibid.
  • 48
    • 84888907740 scopus 로고    scopus 로고
    • note
    • See Art. 20 ICTYSt., Art. 15 ICTRSt. and Art. 15 of the Statute of the Special Court for Sierra Leone (hereinafter SCSLSt.).
  • 49
    • 84888900510 scopus 로고    scopus 로고
    • note
    • Ibid.
  • 50
    • 84888893994 scopus 로고    scopus 로고
    • note
    • Ibid.
  • 51
    • 84888913388 scopus 로고    scopus 로고
    • On 14 May 1999, following the NATO bombing campaign against the Federal Republic of Yugoslavia, the Prosecutor appointed a Committee to assess the allegations and materials accompanying them, and to advise the Prosecutor whether or not there was sufficient basis to proceed with an investigation into some or all the allegations or into other incidents related to the NATO bombing. The Committee recommended that no investigation be commenced. The Prosecutor accepted the recommendation. See Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, reproduced in (Intersentia: Antwerp). For a criticism of the Committee's findings
    • On 14 May 1999, following the NATO bombing campaign against the Federal Republic of Yugoslavia, the Prosecutor appointed a Committee to assess the allegations and materials accompanying them, and to advise the Prosecutor whether or not there was sufficient basis to proceed with an investigation into some or all the allegations or into other incidents related to the NATO bombing. The Committee recommended that no investigation be commenced. The Prosecutor accepted the recommendation. See Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, reproduced in A. Klip and G. Sluiter, Annotated Leading Cases of International Tribunals (ALC), Vol. V (Intersentia: Antwerp, 2003). For a criticism of the Committee's findings,
    • (2003) Annotated Leading Cases of International Tribunals (ALC) , vol.5
    • Klip, A.1    Sluiter, G.2
  • 52
    • 27244433214 scopus 로고    scopus 로고
    • 'The ICTY Prosecutor and the Review of the NATO Bombing Campaign Against the Federal Republic of Yugoslavia'
    • see
    • see P. Benvenuti, 'The ICTY Prosecutor and the Review of the NATO Bombing Campaign Against the Federal Republic of Yugoslavia', 12 European Journal of International Law (2001) 507.
    • (2001) European Journal of International Law , vol.12 , pp. 507
    • Benvenuti, P.1
  • 53
    • 84888910299 scopus 로고    scopus 로고
    • Art. 18 ICTYSt. and Art. 17 ICTRSt
    • Art. 18 ICTYSt. and Art. 17 ICTRSt.
  • 54
    • 84888918356 scopus 로고    scopus 로고
    • See Art. 16 ICTYSt., Art. 15 ICTRSt. and Art. 15 SCSLSt
    • See Art. 16 ICTYSt., Art. 15 ICTRSt. and Art. 15 SCSLSt.
  • 55
    • 84888905023 scopus 로고    scopus 로고
    • note
    • As for the meaning of the term 'prima facie case', see ICTY, Decision on the Review of the Indictment, Kordić (IT-95-14-4), 10 November 1995, §3, where Judge McDonald defined the term as 'a credible case, which would (if not contradicted by the Defence) be a sufficient basis to convict the accused on the charge'. This definition was followed in ICTY, Decision on Review of Indictment and Application for Consequential Orders, Milošević, Milutinović, Šainović, Ojdanić and Stojiljković (IT-99-37-I), Judge Hunt, 24 May 1999, in A. Klip and G. Sluiter, ALC-III-35. For other variations, see ICTY, Decision on Application to Amend Indictment and on Confirmation of Amended Indictment, Milošević, Milutinović, Šainović, Ojdanić and Stojiljković (IT-99-37-I), Judge Hunt, 29 June 2001, §3, and ICTY, Order Granting Leave to file an Amended Indictment and Confirming the Amended Indictment, Mladić (IT-95-5/18-1), Judge Orie, 8 November 2002, §26.
  • 56
    • 84888895031 scopus 로고    scopus 로고
    • Article 18(4) ICTYSt. and Art. 17 ICTRSt
    • Article 18(4) ICTYSt. and Art. 17 ICTRSt.
  • 57
    • 84888922997 scopus 로고    scopus 로고
    • See Art. 1 ICTYSt., Art. 1 ICTRSt. and Art. 1 SCSLSt
    • See Art. 1 ICTYSt., Art. 1 ICTRSt. and Art. 1 SCSLSt.
  • 58
    • 84888927243 scopus 로고
    • 'Rules of Procedure and Evidence of the Former Yugoslavia'
    • D.D.N. Nsereko, 'Rules of Procedure and Evidence of the Former Yugoslavia', 5 Criminal Law Forum (1994), at 519.
    • (1994) Criminal Law Forum , vol.5 , pp. 519
    • Nsereko, D.D.N.1
  • 59
    • 84888932527 scopus 로고    scopus 로고
    • See Rule 50 ICTY RPE and Rule 50 ICTR RPE
    • See Rule 50 ICTY RPE and Rule 50 ICTR RPE.
  • 60
    • 84888927516 scopus 로고    scopus 로고
    • See Rule 51 ICTY RPE and Rule 51 ICTR RPE
    • See Rule 51 ICTY RPE and Rule 51 ICTR RPE.
  • 61
    • 84888915577 scopus 로고    scopus 로고
    • See Rule 47(D) ICTY RPE and Rule 47 ICTR RPE. An amendment of 14 April 2004 to Rule 28 of the Yugoslav Rules now requires that before the indictment is passed on to a Judge for review, the Bureau must first determine that it 'prima facie, concentrates on one or more of the most senior leaders suspected of being responsible for the crimes within the jurisdiction of the Tribunal'. When the Bureau determines that it does not, then the Prosecutor is so informed. See (visited January)
    • See Rule 47(D) ICTY RPE and Rule 47 ICTR RPE. An amendment of 14 April 2004 to Rule 28 of the Yugoslav Rules now requires that before the indictment is passed on to a Judge for review, the Bureau must first determine that it 'prima facie, concentrates on one or more of the most senior leaders suspected of being responsible for the crimes within the jurisdiction of the Tribunal'. When the Bureau determines that it does not, then the Prosecutor is so informed. See http://www.un.org/ity/ Supplement/supp49-e/IT-226.htm (visited January 2005).
    • (2005)
  • 62
    • 84888917584 scopus 로고    scopus 로고
    • note
    • As Judge Orie of the ICTY observed: 'standing trial is a difficult experience and an accused should not be put on trial if, from the outset, a conviction is unlikely.' (order granting leave to file an amended indictment and confirming the amended indictment, Mladić (IT-95-5/18-1), 8 November 2002, §22).
  • 63
    • 84888904057 scopus 로고    scopus 로고
    • Article 42(1)
    • Article 42(1).
  • 64
    • 84888891351 scopus 로고    scopus 로고
    • Article 42(1)
    • Ibid.
  • 65
    • 84888917709 scopus 로고    scopus 로고
    • Article 42(1)
    • Ibid.
  • 66
    • 84888903913 scopus 로고    scopus 로고
    • 'The Office of the Prosecutor'
    • See O. Triffterer (ed.), (Baden-Baden: Nomos), Art. 42, margin nos
    • See M. Bergsmo and F. Harhoff, 'The Office of the Prosecutor', in O. Triffterer (ed.), Commentary on the Rome Statute (Baden-Baden: Nomos, 1999), Art. 42, margin nos 7-9.
    • (1999) Commentary on the Rome Statute , pp. 7-9
    • Bergsmo, M.1    Harhoff, F.2
  • 68
    • 84888927409 scopus 로고    scopus 로고
    • note
    • See, for example, the editorial comment of the Detroit News, 28 July 1998, A6, asserting that 'the international criminal court is an extremely bad idea that would work only to the extent that it is able to breach national sovereignty'.
  • 69
    • 84888899886 scopus 로고    scopus 로고
    • 'The Trouble with the War-Crimes Court'
    • See, for example, 26 July C07, criticizing supporters of the Court for 'cheering the creation of not just a court but a powerful Prosecutor's Office that will be accountable to almost none of the checks and balances that restrain law enforcement in a democracy and empowered to punish people who have virtually no say over its operation'
    • See, for example, F. Hiatt, 'The Trouble with the War-Crimes Court', The Washington Post, 26 July 1998, C07, criticizing supporters of the Court for 'cheering the creation of not just a court but a powerful Prosecutor's Office that will be accountable to almost none of the checks and balances that restrain law enforcement in a democracy and empowered to punish people who have virtually no say over its operation'.
    • (1998) The Washington Post
    • Hiatt, F.1
  • 70
    • 27244440836 scopus 로고    scopus 로고
    • 'The International Criminal Court: Jurisdictional and Related Issues'
    • The other Chambers are the Trial Chambers and the Appeals Chamber. See generally D.D.N
    • The other Chambers are the Trial Chambers and the Appeals Chamber. See generally D.D.N. Nsereko, 'The International Criminal Court: Jurisdictional and Related Issues', 10 Criminal Law Forum (1999) 87-120.
    • (1999) Criminal Law Forum , vol.10 , pp. 87-120
    • Nsereko, D.D.N.1
  • 71
    • 84888900737 scopus 로고    scopus 로고
    • Article 1 ICCSt
    • Article 1 ICCSt.
  • 72
    • 84888912744 scopus 로고    scopus 로고
    • Article 15
    • Article 15.
  • 73
    • 84882185571 scopus 로고    scopus 로고
    • 'Preliminary Rulings Regarding Admissibility'
    • In December 2003, President Yoweri Museveni of Uganda referred to the Prosecutor the situation concerning the Lord's Resistance Army. The Prosecutor, after determining that there was 'a sufficient basis' to conduct investigations, decided to commence the investigations (The Hague, 29 January 2004), available online at (visited January 2005). However, under Art. 18 ICCSt., the Prosecutor is obliged to notify all the States Parties of his intention to investigate. If, on receiving the notification, a state that otherwise has jurisdiction indicates that it is exercising or intends to exercise such jurisdiction in respect of the same situation, the Prosecutor must defer to that state. The only way that the Prosecutor may commence investigations and prosecution in such circumstances is by seeking and obtaining authorization from the Pre Trial Chamber. See also M. Bergsmo and F. Harhoff "
    • In December 2003, President Yoweri Museveni of Uganda referred to the Prosecutor the situation concerning the Lord's Resistance Army. The Prosecutor, after determining that there was 'a sufficient basis' to conduct investigations, decided to commence the investigations (The Hague, 29 January 2004), available online at http://icc-cpi.int/ pressrelease_details&id=16&1=en.html (visited January 2005). However, under Art. 18 ICCSt., the Prosecutor is obliged to notify all the States Parties of his intention to investigate. If, on receiving the notification, a state that otherwise has jurisdiction indicates that it is exercising or intends to exercise such jurisdiction in respect of the same situation, the Prosecutor must defer to that state. The only way that the Prosecutor may commence investigations and prosecution in such circumstances is by seeking and obtaining authorization from the Pre Trial Chamber. See also D.D.N. Nsereko, 'Preliminary Rulings Regarding Admissibility', in O. Triffterer, supra note 55, Art. 18.
    • (1999) Commentary on the Rome Statute
    • Nsereko, D.D.N.1
  • 74
    • 84888902717 scopus 로고    scopus 로고
    • Preliminary Rulings Regarding Admissiblity'
    • In December 2003 President Yoweri Museveni of Uganda to the Prosecutor the situation concerning the Lord's Resistance Army. The Prosecutor, after determining that there was 'a sufficient basis' to conduct investigations, decided to commence the investigations (Thwe Hague, 29 January 2004), available online at (visited January 2005). However, under Art. 18 ICCSt., the Prosecutor is obliged to notify all the State parties of his intention to investigate. Fi on receiving the notification, a state that otherwise has jurisdiction has jurisdiction indicates that it is exercising or intends to exercise such jurisdiction in respect of the same situation, the Prosecutor must defer to that state. The only way that the Prosecutor may commence investigations and prosecution in such circumstances is by seeking and obtaining authorization from the Pre-Trial Chamber. See also O. Triffterer, See M. Bergsmo and F. Harhoff, "
    • Ibid.
    • Commentary on the Rome Statute
    • Nserenko, D.D.N.1
  • 75
    • 84888928409 scopus 로고    scopus 로고
    • Art. 54(1) ICCSt. (emphasis added)
    • Art. 54(1) ICCSt. (emphasis added).
  • 76
    • 84888900317 scopus 로고    scopus 로고
    • Art. 61 ICCSt
    • Art. 61 ICCSt.
  • 77
    • 84888916552 scopus 로고    scopus 로고
    • Art. 61(7) ICCSt
    • Art. 61(7) ICCSt.
  • 78
    • 84888928321 scopus 로고    scopus 로고
    • note
    • See supra note 44.
  • 79
    • 84888898134 scopus 로고    scopus 로고
    • note
    • Art. 53(2) ICCSt. provides as follows: If, upon investigation, the Prosecutor concludes that there is not a sufficient basis for a prosecution because: There is not a sufficient legal or factual basis to seek a warrant or summons under article 58; The case is inadmissible under article 17; or A prosecution is not in the interest 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 perpetrator, and his or her role in the alleged crime; the Prosecutor shall inform the Pre-Trial Chamber and the state making a referral under Article 14 or the Security Council in a case under Article13(b) of his conclusion and the reasons for the conclusions.
  • 80
    • 84888899087 scopus 로고    scopus 로고
    • note
    • Ibid.
  • 81
    • 84888901924 scopus 로고    scopus 로고
    • note
    • Article 53(3) ICCSt. It is inconceivable that the Prosecutor would decline to reconsider his decision and refuse to investigate.
  • 82
    • 84888911535 scopus 로고    scopus 로고
    • Article 53(3)(b) ICCSt
    • Article 53(3)(b) ICCSt.
  • 83
    • 84888896458 scopus 로고    scopus 로고
    • Article 61(9) ICCSt
    • Article 61(9) ICCSt.
  • 84
    • 84888922220 scopus 로고    scopus 로고
    • Article 61 (9) ICCSt
    • Ibid.
  • 85
    • 84888896304 scopus 로고    scopus 로고
    • Article 61(9) ICCSt
    • Article 61(9) ICCSt.
  • 86
    • 84888914769 scopus 로고    scopus 로고
    • Articles 17 and 18 ICCSt
    • Articles 17 and 18 ICCSt.
  • 87
    • 84888904826 scopus 로고    scopus 로고
    • note
    • This is one of the arguments that the detractors of the Court used to oppose the Court. See, for example, the editorial opinion of the Detroit News, 28 July 1998, A6, where the editor fulminated as follows: 'If the tribunal is able to invalidate national trials by deciding what constitutes an "effective" trial, the tribunal will be able to exercise a kind of extra-territorial judicial review power over national courts, seriously undermining the principle of national democracies. The Clinton administration's decision to withhold the United States' signature from the Rome folly will significantly weaken the tribunal. Given how glowingly the administration had talked about such a tribunal until recently, this is a welcome - though belated - show of sanity.'
  • 88
    • 84888925090 scopus 로고    scopus 로고
    • For an example of the problems that the Prosecutor may encounter in this respect, see the experience of the Prosecutor of the ICTY and ICTR, Carla Del Ponte, in the Barayagwiza case, Barayagwiza (ICTR-97-19-I), Decision of the Appeals Chamber, 3 November
    • For an example of the problems that the Prosecutor may encounter in this respect, see the experience of the Prosecutor of the ICTY and ICTR, Carla Del Ponte, in the Barayagwiza case, Barayagwiza (ICTR-97-19-I), Decision of the Appeals Chamber, 3 November 1999.
    • (1999)
  • 91
    • 84888921313 scopus 로고
    • See See the English case of Gouriet v. Union of Post Office Workers Appeal Cases (AC) 435 at where Viscount Dilhorne said: 'The Attorney-General has many powers and duties. He may stop any prosecution on indictment by entering a nolle prosequi. He merely has to sign a piece of paper saying that he does not wish the prosecution to continue. He need not gice any reasons. he can direct the institution of a prosecution and direct the Director of Public Prosecutions to take over the conduct of any criminal proceedings and he may tell him to offer no evidence. In the exercise of these powers he is not subject to direction by his ministerial colleagues or to control and supervision by the courts' (emphasis added)
    • See supra note 18.
    • (1978) , pp. 487
  • 92
    • 84888928899 scopus 로고    scopus 로고
    • note
    • As for the qualifications and methods of appointment of the prosecutors of the ad hoc Tribunals, see Art. 16 ICTYSt, Art. 15 ICTRSt. and Art. 15 SCSLSt. As for the qualifications of the Prosecutor and methods of election and removal from office, see Arts 42 and 46 ICCSt.
  • 93
    • 84888896800 scopus 로고
    • Art. 18 (emphasis added). Article 13(b) of the UN Guidelines on the Role of Prosecutors specifically provide that in the performance of their duties, prosecutors shall 'Protect the public interest, act with objectivity, take proper account of the position of the suspect and the victim, and pay attention to all relevant circumstances, irrespective of whether they are advantage or disadvantage of the suspect' (Report of the Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders. UN doc. A/CONF.144/28 at)
    • Supra note 23, Art. 18 (emphasis added).
    • (1990) , pp. 117
  • 95
    • 84888916911 scopus 로고    scopus 로고
    • 'Prosecutorial Discretion: A View From the Federal Trade Commission'
    • See also available online at (visited January)
    • See also R.B. Starek, III, 'Prosecutorial Discretion: A View From the Federal Trade Commission', available online at http://www.cato.org/pubs/regulation/reg20n4d.html (visited January 2005).
    • (2005)
    • Starek III, R.B.1
  • 96
    • 84888901824 scopus 로고    scopus 로고
    • See, for example, The Statement of Prosecution Policy and Practice (Department of Justice, Hong Kong Special Administrative Region, 2002). Prosecution Policy of the Commonwealth: Guidelines for the Making of Decisions in the Prosecution Process, prepared by the Office of the Director of Public Prosecutions, Canberra 1986. US Department of Justice, Immigration and Naturalization Service Fact Sheet: Prosecutorial Discretion Guidelines, 28 November 2002. FLRA GC's Prosecutorial Discretion: Memorandum from the General Counsel to Regional Directors, 25 May 1994, available online at (visited January)
    • See, for example, The Statement of Prosecution Policy and Practice (Department of Justice, Hong Kong Special Administrative Region, 2002). Prosecution Policy of the Commonwealth: Guidelines for the Making of Decisions in the Prosecution Process, prepared by the Office of the Director of Public Prosecutions, Canberra 1986. US Department of Justice, Immigration and Naturalization Service Fact Sheet: Prosecutorial Discretion Guidelines, 28 November 2002. FLRA GC's Prosecutorial Discretion: Memorandum from the General Counsel to Regional Directors, 25 May 1994, available online at http://www.flra.gov/gc/pdd.html (visited January 2005).
    • (2005)
  • 97
    • 84888925811 scopus 로고    scopus 로고
    • See, for example, supra note 46. See Art. 1 ICTYSt., Art. ICTRSt. and Art. 1 SCSLSt
    • See, for example, supra note 46.
  • 98
    • 84888928230 scopus 로고    scopus 로고
    • Decision of the Appeals Chamber
    • See the Barayagwiza case, at §For example of the problems that the Prosecutor may encounter in this respect, see the experience of the Prosecutor of the ICTY and ICTR, Carla del ponte, in the Barayagwiza case, Barayagwiza (ICTR-97-19-I) 3 November
    • See the Barayagwiza case, supra note 77, at §106.
    • (1999) , pp. 106
  • 99
    • 84888890343 scopus 로고    scopus 로고
    • Decision on the Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal
    • See Nikolić (IT-94-2-PT), Trial Chamber II, 9 October §
    • See Decision on the Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal, Nikolić (IT-94-2-PT), Trial Chamber II, 9 October 2004; §74.
    • (2004) , pp. 74
  • 100
    • 84888928912 scopus 로고    scopus 로고
    • note
    • For example, the Presidents of the Tribunals are required to submit annual reports of the Tribunals to the Security Council and to the General Assembly. See Art. 34 ICTYSt. and Art. 32 ICTRSt.
  • 101
    • 84888926866 scopus 로고    scopus 로고
    • note
    • According to Art. 112(2)(b) ICCSt., the Assembly is responsible for providing 'administrative oversight' to the organs of the Court, including the Prosecutor.
  • 102
    • 84888927243 scopus 로고
    • 'Rules of Procedure and Evidence of the Former Yugoslavia'
    • See generally
    • See generally D.D.N. Nsereko, 'Rules of Procedure and Evidence of the Former Yugoslavia', 5 Criminal Law Forum (1994) 519.
    • (1994) Criminal Law Forum , vol.5 , pp. 519
    • Nsereko, D.D.N.1


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