Prosecutorial Discretion and its Judicial Review at the International Criminal Court: A Practice-based Analysis of the Relationship between the Prosecutor and Judges

Abstract

The permanent system of international criminal justice created through the Rome Statute envisages a wide margin of discretion for prosecutorial action, under the constraint of various forms of judicial supervision. Nevertheless, legal texts provide only very limited guidance to the Office of the Prosecution and judges as to the concrete exercise of these powers and responsibilities. For this reason, prosecutorial and judicial dynamic practice plays a fundamental creative role in integrating—and sometimes transforming—the ICC static legal framework. The present research has aimed at analysing the patterns of prosecutorial and judicial practice at the pre-trial stage of the proceedings of the ICC, with a view to comparing the law in the books and the law in action in this area of crucial importance for the legitimacy of the Court. The hypothesis that in this field there are areas of interpretive agreement (smooth relationship) and disagreement (open clash) between the relevant actors, as well as a certain degree of dissociation between the textual formant and the prosecutorial/judicial formant has been tested against the relevant practice. These empirical phenomena have then been assessed as to their possible institutional causes and (potentially detrimental) consequences, with a view to proposing institutional, procedural, administrative and legislative adjustments that may help fostering the predictability and consistency of the system. The conclusion is that practice in this field is a fundamental test-bench for the institutional functioning of the ICC, and that it is still in the process of establishing— by means of the interplay between the OTP and judges—a satisfactory balance among the conflicting needs of flexibility and predictability; one that only pragmatic interpretive compromises can bring about in the future