Guarding the gates: the essential role of a robust Pre-Trial Chamber in ensuring the International Criminal Court's impartiality, independence and legitimacy

Salinas Cerda, Ania Carola del Carmen (2015) Guarding the gates: the essential role of a robust Pre-Trial Chamber in ensuring the International Criminal Court's impartiality, independence and legitimacy. PhD thesis, University of Glasgow.

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Abstract

The Pre-Trial Chamber (PTC) of the International Criminal Court (ICC) was conceived of as the Court’s gatekeeper and empowered in the Rome Statute to provide an essential counterbalance to the significant discretionary powers granted to the Prosecutor. This thesis analyses in detail the PTC’s powers at the different stages of the Court’s proceedings in which it is called to intervene – ie pre-investigation, investigation and pre-trial stages – and argues that, in general terms and save some limitations, the PTC has the necessary tools to carry out its function. In particular, the PTC has been empowered to prevent possible abuses of power and shield the Prosecutor from external pressures through the judicial review of his most critical discretionary decisions. By way of that judicial control, the PTC is meant to examine the rationale behind the Prosecutor’s decisions in order to guarantee that the exercise of discretion is not abusive or the result of improper political pressures. This is necessary to safeguard the legitimacy of the institution as a whole and to protect the rights of those that can be affected by the Court’s investigations and prosecutions. However, a systematic evaluation of the way in which these powers have been applied reveals that the PTC’s judges have adopted a rather cautious approach to their role, showing some reluctance to firmly scrutinise the Prosecutor’s exercise of discretion.
As a result of the Court’s inherent limitations and the political climate in which it operates, there is a concrete risk that external actors may try to politicise the role of the Court, exerting political pressures on the Prosecutor. The adoption of a more proactive and firm role by the PTC will not only encourage a more transparent decision-making process by the Prosecutor, but will also urge cooperation and genuine investigations and prosecutions at the national level, therefore minimising the risk of the Court’s political instrumentalisation. Accordingly, this thesis argues that, for as long as the PTC boldly embraces its full powers, the ICC will function smoothly and strengthen its reputation as a fair and impartial means by which to obtain international criminal justice.

Item Type: Thesis (PhD)
Qualification Level: Doctoral
Keywords: Pre-Trial Chamber, International Criminal Court, gatekeeping, Rome Statute, Prosecutor's discretion
Subjects: J Political Science > JX International law
K Law > K Law (General)
K Law > KZ Law of Nations
Colleges/Schools: College of Social Sciences > School of Law
Supervisor's Name: Christodoulidis, Professor Emilios and Sloan, Doctor James
Date of Award: 2015
Depositing User: Dr. ACdC Salinas Cerda
Unique ID: glathesis:2015-6420
Copyright: Copyright of this thesis is held by the author.
Date Deposited: 03 Jun 2015 12:53
Last Modified: 05 Jun 2018 12:25
URI: http://theses.gla.ac.uk/id/eprint/6420

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