A critical legal analysis of prosecutorial discretion at the International Criminal Court: towards more transparency, accountability, and legitimacy

Pues, Anni Henriette (2017) A critical legal analysis of prosecutorial discretion at the International Criminal Court: towards more transparency, accountability, and legitimacy. PhD thesis, University of Glasgow.

Abstract

The Prosecutor is the gatekeeper at the ICC. Her discretionary decisions determine in which situations the Court will commence an investigation and who will be brought before the Court. The Prosecutor’s focus on Africa has led to severe criticism of alleged anti-African bias and an erosion of the Court's legitimacy. Against this background, this thesis examines the exercise of prosecutorial discretion at the ICC. It identifies the scope for procedural discretionary decisions at the key junctures of the proceedings, covering areas such as how to conduct a preliminary examination, when to commence an investigation, who to prosecute and which charges to bring. The analysis is based on the theoretical understanding that the legality of decisions is crucial, which is why the thesis analyses the legal limitations of the exercise of discretion to clearly determine its boundaries. However, legality alone is not sufficient to serve the aim of safeguarding and enhancing the legitimacy of the Court. It is argued that the Prosecutor is not entirely free, but bound by the main principles and aims represented in the Rome Statute. She must ensure that her decisions demonstrate impartiality, maximize the deterrence effect of the ICC, and respond to victims' interests. To achieve a positive effect on the legitimacy of the Court, it is also required that the Prosecutor deliberates on individual decisions and makes these decisions more transparent. This will provide routes to pragmatic mechanisms of accountability, beyond the limited possibilities in the Rome Statute to hold the Prosecutor formally to account.
In this regard, the thesis also analyses the role of the gravity notion, a concept that gained increased prominence in the evolving practice of the Prosecutor, and of the interests of justice, a notion that has not once been used yet. Both are indeterminate concepts that equip the Prosecutor with the necessary flexibility to respond to a variety of very different scenarios that might occur within the jurisdiction of the Court. The thesis demonstrates that the acts of applying these concepts contain a type of interpretative discretion. For the gravity notion, however, the scope is very limited, does not allow any managerial considerations, and must strictly be geared towards consistency. While the interests of justice currently appear redundant, this thesis demonstrates how this concept can gain new importance for the completion of situations, one of the challenges ahead for the Court. Overall, this thesis aims to identify avenues by which the Prosecutor can contribute to turning the Court into a more responsive institution, striking a balance between the preservation of its independence and open interaction with its stakeholders.

• Item Type: Thesis (PhD)
• Qualification Level: Doctoral
• Keywords: International Criminal Court, prosecutorial discretion, Llegitimacy, accountability, transparency.
• Subjects: K Law > K Law (General); K Law > KZ Law of Nations
• Colleges/Schools: College of Social Sciences > School of Law
• Supervisor's Name: Sloan, Professor James and Geiss, Professor Robin
• Date of Award: 2017
• Embargo Date: 25 September 2020
• Depositing User: Anni Henriette Pues
• Unique ID: glathesis:2017-8431
• Copyright: Copyright of this thesis is held by the author.
• Date Deposited: 29 Sep 2017 09:48
• Last Modified: 07 Jun 2024 15:20
• Thesis DOI: 10.5525/gla.thesis.8431
• URI: https://theses.gla.ac.uk/id/eprint/8431