The Powers and Role of the Prosecutor of the International Criminal Court in the Global Fight against Impunity

Leiden Journal of International Law

Volumn 17, Issue 1, 2004, Pages 121-139

  Hall, Christopher Keith ^a  

^a NONE

Author keywords

complementarity; international courts; International Criminal Court

Indexed keywords

EID: 34248047330     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156504001633     Document Type: Article

References (57)

1. Rome Statute, UN Doc. A/CONF.183/9*, 17 July 1998, as corrected by UN Doc. CN577.1998.TREATIES-8, 10 Nov. 1998 and UN Doc. CN604.1999.TREATIES-18, 12 July 1999. The Rome Statute and all Assembly of States Parties documents mentioned in this article are available at http://un.org/law/icc/index/html.
2. Eleven other states parties are known to have enacted legislation addressing only their co-operation or their complementarity obligations. These obligations are spelled out in Amnesty International, ‘The International Criminal Court: Checklist for Effective Implementation’, AI Index: IOR 40/11/00, July 2002. Copies of draft and enacted implementing legislation, as well as commentaries on that legislation, can be found at: http://www.amnesty.org/icc.
3. Agreement on the Privileges and Immunities of the International Criminal Court, UN Doc. ICC-ASP/1/3 (2002), Part II.E.
4. On 12 July 2002, the Security Council adopted Resolution 1422 (2002), which purports to be consistent with Art. 16 of the Rome Statute (permitting the Security Council, when acting pursuant to Chapter VII of the Charter of the United Nations, to request the Court to defer an investigation or prosecution for one year). It requested the Court to defer any investigation or prosecution of current or former officials or personnel from non-states parties for conduct relating to a UN-established or authorized operation for one year. On 12 June 2003, the Security Council renewed this request in Resolution 1487 (2003). Both resolutions were severely criticized by a large number of states and others as unlawful; three states abstained on the renewal. See UN Doc. S/PV.4568, and Resumption 1, 10 July 2002; UN Doc. S/PV.4772, 12 June 2003; Amnesty International, ‘International Criminal Court:The Unlawful Attempt by the Security Council to Give US Citizens Permanent Impunity from International Justice’, AI Index: IOR 40/006/2003, May 2003. The Security Council gave in to similar US pressure on 1 Aug. 2003, as a small contingent of US Marines was waiting offshore while the humanitarian crisis deepened in Liberia, when it adopted Resolution 1497 (2003) that purported to allocate exclusive jurisdiction over genocide, crimes against humanity and war crimes committed by nationals of non-states parties contributing forces to the UN peace-keeping operation in Liberia to the courts of those states. Three states abstained and others criticized the resolution. See UN Doc. S/PV.4803, 1 Aug. 2003.
5. Draft Relationship Agreement between the Court and the United Nations, UN Doc. ICC-ASP/1/3 (2002), Part II.G.
6. See G. Moynier, ‘Note sur la création d'une institution judiciaire internationale propre a’ prévenir et a’ ré primer les infractions a’ la Convention de Genève’, (1972) 11 Bulletin international des Sociétés de secours aux militaires blessé s, Comité international, 129-31;Memorandum by the Secretary-General,Historical Survey of the Question of International Criminal Jurisdiction, UN Doc. A/CN.4/7/Rev.1 (1949).
7. Statute of the Tribunal, Annexed to Report of the Secretary-General pursuant to paragraph 2 of Security Council resolution 808 (1993), UN Doc. S/25704, 3May 1993, Arts. 16, 18 and 19.
8. Although one member of the ILC suggested that the Prosecutor should have the authority to exercise proprio motu powers, ‘other members felt that the investigation and prosecution of the crimes covered by the Statute should not be undertaken in the absence of the support of a State or the Security Council, at least not at the present stage of development of the international legal system’. Report of the International Law Commission on the work of its forty-sixth session, 2May-22 July 1994, 49UNGAORSupp. (No. 10), at 90,UNDoc.A/49/10 (1994).
9. For the drafting history of the provisions of the Rome Statute concerning the Prosecutor, see S. A. Fernández de Gurmendi, ‘The Role of the International Prosecutor’, in R. S. Lee, The International Criminal Court: The Making of the Rome Statute-Issues-Negotiations-Results (1999), 175.
10. For an overview of the statutory powers of the Prosecutor, written before the entry into force of the Rome Statute, seeG. Turone, ‘Powers and Duties of the Prosecutor’, inA. Cassese, P.Gaeta, and J. R.W. D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (2002), 1137.
11. Rome Statute, Art. 42(2).
12. Rome Statute., Art. 42(3).
13. Rome Statute., Art. 42(4).
14. Rome Statute., Art. 42(1). In addition, neither the Prosecutor nor the Deputy Prosecutors may ‘engage in any activity which is likely to interfere with his or her prosecutorial functions or to affect confidence in his or her independence’ (Rome Statute., Art. 42(5)), and they may not ‘participate in any matter in which their impartiality might reasonably be doubted on any ground’ (Art. 42(7)).
15. Rome Statute.,Art. 46(1) and (2). The decision to remove either official is made by an absolute majority of the Assembly of States Parties, but in the case of the Deputy Prosecutor only upon recommendation of the Prosecutor, Art. 46(2)(b) and (c).
16. Rome Statute., Art. 44(1).
17. Rome Statute., Arts. 44(2), 36(8).
18. UN Doc. ICC-ASP/1/Res.10, 9 Sept. 2002.
19. Rome Statute, Art. 44(4).
20. Rome Statute., Art. 42(9).
21. UN Doc. ICC-ASP/1/3 (2002), Part II.A.
22. For a discussion of some of these issues, see the papers submitted by experts to the Prosecutor and Allison Marston Danner, Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court, 97 Am. J. Int'l L. 510 (2003).
23. Rome Statute, Arts. 13(a) and (b) and 14.
24. Rome Statute., Art. 15(1) and (2).
25. Rome Statute., Art. 15(2).
26. Rome Statute., Art. 15(3).
27. Rome Statute., Art. 15(4).
28. See, e.g., Rome Statute., Arts. 89 (Surrender of Persons to the Court), 90 (Competing Requests), 94 (Postponement of Execution of a Request in Respect of Ongoing Investigation or Prosecution), 95 (Postponement of Execution of a Request in Respect of an Admissibility Challenge), 98 (Co-operation with Respect to Waiver of Immunity and Consent to Surrender) and 99 (Execution of Requests under Articles 93 and 96).
29. Rome Statute., Art. 54(1). For a description of the Prosecutor's powers and duties concerning investigations, see M. Bergsmo and P. Kruger, ‘Article 54’, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (1999), 715.
30. Rome Statute, Art. 68(1). See also Art. 68(4) and (5).
31. Rome Statute, Art., Arts. 54(2), 57(3)(d).
32. Rome Statute, Art., Art. 54(3).
33. Rome Statute, Art., Art. 56(1).
34. Rome Statute, Art., Art. 56(3).
35. Rome Statute, Art., Art. 58(1) and (7).
36. Rome Statute, Art., Art. 60(4).
37. Rome Statute, Art., Art. 61(1), (2) and (7).
38. Rome Statute, Art., Art. 61(5) and (7)(c)(i).
39. Rome Statute, Art., Art. 66.
40. Rome Statute, Art., Art. 65 (4).
41. Rome Statute, Art., Art. 64(3)(c); Rules of Procedure and Evidence, Rules 76-79.
42. Rome Statute, Art. 64(8)(b); Rules of Procedure and Evidence, Rule 140.
43. Rome Statute, Art. 64(6)(d).Common law judges have this power in many countries, but rarely use it because it is believed that the adversarial presentation of evidence by the two parties is the best way for the truth to emerge.
44. Rome Statute, Art., Art. 68(3); Rules of Procedure and Evidence, Rules 89 to 93. These provisions on the participation of victims are to be supplemented in Regulations of the Court scheduled for discussion and possible adoption at the November plenary session of judges.
45. Rome Statute, Art. 81(1).
46. Rome Statute., Art. 81(2) (a).
47. Rome Statute., Art. 84(1).
48. Rome Statute.,Art. 9(2)(c) (Elements of Crimes); Art. 51(2) (Rules of Procedure and Evidence); Art. 52(2) (Regulations of the Court); Rules of Procedure and Evidence, R. 8 (Code of Professional Conduct for Counsel);Art. 44(3) (Staff Regulations of the Court); Art. 42(2) (Regulations of the Office of the Prosecutor); and R. 14 (1) (Regulations of the Registry); Art. 42(2) (Regulations of the Office of the Prosecutor).
49. Financial Regulations and Rules, UN Doc. ICC-ASP/1/3 (2002), Part II.D, Regulation 1 and Rule 103.2.
50. Summary of Recommendations Received during the First Public Hearing of the Office of the Prosecutor, convened from 17-18 June 2003 at The Hague: Comments and Conclusions of the Office of the Prosecutor. However, the draft Regulations of the Office of the Prosecutor were withdrawn without notice in the light of the organisational changes begun in November 2003 (see below) and it is not known what type of consultation will occur during their revision.
51. Draft programme budget for 2004, UN Doc. ICC-ASP/2/2, 23May 2003.
52. Paper on some policy issues before the Office of the Prosecutor, ICC-OTP 2003 undated, but revised shortly after the June 2003 public hearings.
53. Communications received by the Office of the Prosecutor of the ICC, Press Release, No. pids.009.2003-EN, 16 July 2003.
54. Report of the Prosecutor of the ICC, Mr Luis Moreno Ocampo, 8 Sept. 2003.
55. For two recent examples of reports of crimes since 1 July 2002 occurring throughout the DRC within the jurisdiction of the Court, see Amnesty International, ‘Democratic Republic of the Congo: Children at War’, AI Index:AFR 62/034/2003, 9 Sept. 2003, and ‘Democratic Republic of the Congo:Mission Findings’, AI Index: AFR 62/025/2003, 1 Aug. 2003.
56. Policy paper, the Preamble, states parties affirm that ‘the most serious crimes of concern to the international community as awhole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international co-operation’;must determine ‘to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes’; and recall that ‘it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’ note 53, at 5.
57. See, for example,Communications received, 16 July 2003, Policy paper note 54;Report of the Prosecutor, 8 September 2003, Policy paper note 55, at 4.