The prosecutor of the ICC before the initiation of investigations: A quasi-judicial or a political body?

Abstract

This article starts off with a description of the key role conferred upon the Prosecutor of the International Criminal Court at the earliest stages of the proceedings and the safeguards against potential abuses of prosecutorial discretion provided for in the Statute of the International Criminal Court. Then the basic distinction is drawn between the concept of inherent discretion, one of the elements of the principle of legality, and the concept of political discretion. On this basis, the article takes a look at the different choices between the principles of legality and political discretion made by some of the major national systems of criminal justice. As a next step, the piece sets out the predominant influence of the principle of legality in the exercise by the ICC Prosecutor of her initial set of functions, which consist of the reception of the notitia criminis and the development of the preliminary examination. This is contrasted with the granting of political discretion to the same Prosecutor in her decision as to whether or not to open an investigation or to submit a request for authorization to do so to the Pre-Trial Chamber. Finally, a number of conclusions and some suggestions for the reform of either the ICC Statute or the ICC Rules of Procedure and Evidence are put forward.