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Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court

Published online by Cambridge University Press:  27 February 2017

Allison Marston Danner
Affiliation:
Vanderbilt University Law School

Extract

The rapid ratification of the Rome Statute of the International Criminal Court (ICC) and the orderly election of its judges and prosecutor belie the radical nature of the new institution. The Court has jurisdiction over genocide, aggression, crimes against humanity, and war crimes—crimes of the utmost seriousness often committed by governments themselves, or with their tacit approval. The ICC has the formal authority to adjudge the actions of high state officials as criminal and to send them to jail, no matter how lofty the accused’s position or undisputed the legality of those acts under domestic law. While the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) also possess this authority, those institutions operate directly under the control of the United Nations Security Council and within narrow territorial limits. The ICC, by contrast, is largely independent of the Council and vests the power to investigate and prosecute the politically sensitive crimes within its broad territorial sweep in a single individual, its independent prosecutor.

Type
Research Article
Copyright
Copyright © American Society of International Law 2003

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References

1 The ICC’s first judges were elected in February 2003. The results of the election are available online at <http://www.un.org/law/icc/asp> (visited July 24, 2003). The Court’s Prosecutor, Luis Moreno Ocampo, was elected in April 2003. Election of the Prosecutor of the International Criminal Court, available at http://www.un.org/law/icc/asp (visited July 24, 2003).

2 Rome Statute of the International Criminal Court, July 17, 1998, Art. 27, UN Doc. A/CONF.183/9*(1998), reprinted in 37 ILM 999 (1998), corrected through May 8,2000, by UN Doc. CN. 177.2000. TREATIES–5 [hereinafter Rome Statute], available at <http://www.icc-cpi.int>. The International Criminal Court shall be referred to hereinafter as either “the ICC” or “the Court.”

3 Although this article refers to the Prosecutor in the singular, he clearly will not act alone but, instead, will be supported by a team of prosecutors. Id., Art. 42 (2) (providing that “the Prosecutor shall be assisted by one or more Deputy Prosecutors”). The Prosecutor and deputy prosecutors will be in charge of the “Office of the Prosecutor.” At the ICTY and ICTR, the prosecution is usually referred to by its acronym, “OTP,” further underscoring the collective nature of prosecutorial decision making. References in this article to the “Prosecutor,” therefore, should be understood to refer to the chief prosecutor, his deputy prosecutors, and the other prosecutors that make up the ICC’s Office of the Prosecutor. The ICTY and ICTR Prosecutor will be referred to analogously.

4 The Prosecutor of the ICC has more discretion than the Prosecutor of the ad hoc tribunals because of the wider scope of the ICC’s jurisdiction. Goldstone, Richard J. & Fritz, Nicole, ‘In the Interests of Justice’ and Independent Referral: The ICC Prosecutor’s Unprecedented Powers, 13 Leiden J. Int’l L. 655, 657 (2000)Google Scholar (describing degree of ICC Prosecutor’s independence as a “fundamental departure” from that of the Prosecutor of the ad hoc tribunals).

5 See, e.g., Bolton, John R., Under secretary of state for arms control and international security, The United States and the International Criminal Court, Remarks to the Federalist Society (Nov. 14, 2002), at <http://www.state.gov>>Google Scholar; Marc Grossman, under secretary of state for political affairs, Remarks to the Center for Strategic and International Studies (May 6, 2002), at <http://www.state.gov>.

6 Telephone interview with Justice Louise Arbour (July 29, 2002).

7 Cassese, Antonio, Address to the General Assembly of the United Nations (Nov. 14, 1994)Google Scholar, 1994 ICTY Y.B. 134, 137, UN Sales No. E.95.III.P.2; see also The Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, id. at 81,116.

8 Council of Europe, The Role of Public Prosecution in the Criminal Justice System, recommendation (2000) 19 Adopted by the Committee of Ministers of the council of Europe on 6 October 2000 and Explanatory Memorandum at 21 (2001) [hereinafter COE, Role of Public Prosecution]. For similar statements from individual municipal systems, see, for example, Albrecht, Hans-Jörg, Criminal Prosecution: Developments, Trends and Open Questions in the Federal Republic of Germany, 8 Eur. J. Crime, Crim. L. & Crim. Just. 245, 245 (2000)CrossRefGoogle Scholar; Jackson, Robert H., The Federal Prosecutor, 24 J.Am. Judicature Soc’y l8, 18 (1940)Google Scholar; Parmentier, Stephan, Fijnaut, Cyrille, & Daele, Dirk Van, From Sisyphus to Octopus: Towards a Modem Public Prosecutor’s Office in Belgium, 8 Eur. J. Crime, Crim. L. & Crim. Just. 154, 156 (2000)Google Scholar.

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10 There is no unified prosecutorial system in the United Kingdom. References to English practice include the practice in England and Wales but not Scodand or Northern Ireland. See Ashworth, Andrew, Developments in the Public Prosecutor’s Office in England and Wales, 8 Eur. J. Crime, Crim. L. & Crim. Just. 257, 257 (2000)CrossRefGoogle Scholar.

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12 Dervieux, Valerie, TheFrench System, in European Criminal Procedures 218, 241 (Delmas-Marty, Mireille & Spencer, J. R. eds., 2002)Google Scholar. Prosecutors do direct the investigations into less serious crimes. Id. at 236–37.

13 Hodgson, Jacqueline, The Police, the Prosecutor and Tf»ejuge d’instruction, 41 Brit. J. Criminology 342, 346 (2001)Google Scholar.

14 Frase, Richard S. & Weigend, Thomas, German Criminal Justice as a Guide to American Law Reform: Similar Problems, Better Solutions? 18 B.C. Int’l & Comp. L. Rev. 317, 322, 33739 (1995)Google Scholar; Rodolphe Juy-Birmann, The German System, in European Criminal Procedures, supra note 12, at 292, 314.

15 Cost. Art. 112.

16 Antoinette Perrodet, The Public Prosecutor, in European Criminal Procedures, supra note 12, at 415, 447.

17 Claudio Uribe Diaz, Chile, in The Prosecutor of a Permanent International Court, supra note 9, at 251, 252–53.

18 Bergsmo, Morten & Pejić, Jelena, Article 15: Prosecutor, in Commentary on the Rome Statute ofthe International Criminal Court: Observers’notes, Article by Article 359, 363 n. l9 (Triffterer, Otto ed., 1999)Google Scholar [hereinafter Commentary on the Rome Statute].

19 Draft Statute for the International Criminal Court, in Report of the International Law Commission on the Work of its Forty-sixth Session, UN GAOR, 49th Sess., Supp. No. 10, at 43, UN Doc. A/49/10 (1994), reprinted in [1994] 2 Y.B. Int’l L. Comm’n 46, UN Doc. A/CN.4/Ser.A/1994/Add.l (Part 2) [hereinafter ILC Draft]; see also Roy S. Lee, Introduction to The International Criminal Court: The Makingofthe Rome Statute 1, 3 n.5 (Roy S. Lee ed., 1999) [hereinafter The Making of the Rome Statute] (describing ILC draft).

20 ILC Draft, supra note 19, Arts. 23, 25.

21 See Fernández de Gurmendi, Silvia A., The Role of the Prosecutor, in The Rome Statute of the International Criminal Court: A Challenge to Impunity 55, 55 (Politi, Mauro & Nesi, Giuseppe eds., 2001)Google Scholar.

22 ILC Draft, supra note 19, Commentary to Art. 27, at 46.

23 Silvia A. Fernández de Gurmendi, The Role of the International Prosecutor, in The Making of the Rome Statute, supra note 19, at 175, 177.

24 Bergsmo & Pejić, supra note 18, at 360.

25 Fernández de Gurmendi, supra note 23, at 181.

26 Id. at 178.

27 Bergsmo & Pejić, supra note 18, at 360.

28 Fernández de Gurmendi, supra note 23, at 177.

29 Lawyers Committee for Human Rights, the International Criminal Court: Trigger Mechanism and the Need for an Independent Prosecutor 9–11 (ICC Briefing No. 4, July 1997).

30 Human Rights Watch Justice in the Balance: Recommendations for an Independent and Effective International Criminal Court 2 (1998); see Weschler, Lawrence, Exceptional Cases in Rome: The United States and the Struggle for an ICC, in The United States and the International Criminal Court: National Security and International Law 85, 94 (Sewall, Sarah B. & Kaysen, Carl eds., 2000)Google Scholar [hereinafter The United States and the International Criminal Court] .

31 Is a U.N. International Criminal Court in the U.S. National Interest? Hearing Before the Subcomm. on International Operations of the Senate Comm. on Foreign Relations, 105th Cong. 16 (1998) (prepared statement of David Scheffer).

32 Statement of the United States Delegation Expressing Concerns Regarding the Proposal for a Proprio Motu Prosecutor (June 22, 1998), reprinted in id. at 147–49 [hereinafter Statement of United States Delegation],

33 Statement of United States Delegation, supra note 32, at 148.

34 Lionel Yee, The International Criminal Court and the Security Council: Articles 13(b) and 16, in The Making of the Rome Statute, supra note 19, at 143, 150.

35 The Security Council may defer the investigation or prosecution by the Prosecutor of any case for a period of twelve months by adopting a resolution to that effect pursuant to its Chapter VII powers. Rome Statute, supra note 2, Art. 16. The Council can renew the request for deferral upon the expiration of the twelve-month period. Id.

36 Bergsmo & Pejić, supra note 18, at 362.

37 Cassese, Antonio et al., The Rome Statute: A Tentative Assessment, in 2 The Rome Statute of the International Criminal Court: A Commentary 1901, 1907 (Cassese, Antonio et al. eds., 2002)Google Scholar [hereinafter Rome Statute of the International Criminal Court]; Lee, Roy S., Creating an International Criminal Court—Of Procedures and Compromises, in Reflections on the International Criminal Court: Essays in Honour of Adriaan Bos 141, 150 (von Hebel, Herman A. M. et al. eds., 1999)Google Scholar [hereinafter reflections on the International Criminal Court] .

38 See Gallon, Gustavo, The International Criminal Court and the Challenge of Deterrence, in International Crimes, Peace, and Human Rights: the Role Of The International Criminal Court 93, 103 (Shelton, Dinah L. ed., 2000)Google Scholar. Further underscoring the importance of prosecutorial independence, the Rome Statute declares that the Prosecutor “shall act independently as a separate organ of the Court” and forbids the Prosecutor from “seek[ing] or act[ing] on instructions from any external source.” Rome Statute, supra note 2, Art. 42(1).

39 International Covenant on Civil and Political Rights, Dec. 16, 1966, Art. 14, 999 UNTS 171.

40 COE, Role of Public Prosecution, supra note 8, at 9. In France, for example, if the minister of justice wishes to give instructions relating to a particular case, these must be in writing and included in the dossier. In addition, a prosecutor may depart from his written instructions in his oral representations to the court. Dervieux, supra note 12, at 218,224. Nevertheless, in many respects, French prosecutors lack independence. The proper degree of prosecutorial independence is a subject of continuing debate in France; legal experts advocate greater prosecutorial independence, whereas politicians are apprehensive about relinquishing their control over prosecutorial decision making. Perrodet, supra note 16, at 415,425. In Italy, prosecutors have been made functionally independent of the executive, “creating a prosecution service which in effect runs itself.” Id. at 429.

41 Krieger v. Law Soc’y (Alta.), [2002] 217 D.L.R. (4th) 513, 527 (citations omitted).

42 Perrodet, supra note 16, at 415, 432.

43 The crime of aggression will come within the jurisdiction of the Court once the Assembly of States Parties amends the Statute to include a definition of this crime. Rome Statute, supra note 2, Art. 5(2). According to the terms of the Statute, the earliest such an amendment can occur is in 2009, seven years after the entry into force of the treaty. Id., Art. 121(1).

44 Id., Art. 11 (1). If a state ratifies the Rome Statute after July 1,2002, the ICC will have jurisdiction only over crimes committed after the entry into force of the treaty for that state. Id., Art. 11(2).

45 Id., Art. 12(2). A state may also accept the jurisdiction of the Court on an ad hoc basis with regard to that particular situation. Id., Art. 12(3).

46 Id., Art. 15(1).

47 Id., Art. 15(4).

48 Id., Art. 15(3); ICC Rules of Procedure and Evidence, Rule 50(2), available at <http://www.icc-cpi.int> (visited July 30, 2003).

49 Rome Statute, supra note 2, Art. 15(4).

50 Id., Art. 15(5).

51 Id., Art. 15(6).

52 See id., pmbl.

59 See John T. Holmes, The Principle of Complementarity, in The Making of the Rome Statute, supra note 19, at 41, 71.

54 Rome Statute, supra note 2, Art. 18(1).

55 Id., Art. 18(2).

56 Id., Art. 17(1).

57 Giuliano Turone, Powers and Duties of the Prosecutor, in 2 Rome Statute of the International Criminal Court, supra note 37, at 1137, 1142.

58 Louise Arbour, The Challenges of Litigation in the 21st Century: From the ad hoc Tribunals to the International Criminal Court, Address to the American Bar Association, Toronto (Aug. 3, 1998), 1998 ICTY Y.B. 445, 446, UN Sales No. E.00.III.P.1.

59 Rome Statute, supra note 2, Art. 58.

60 Id., Art. 61.

61 Id., Art. 61 (7)(a).

62 Safferltng, Christopher J. M., Towards an International Criminal Procedure 7677 (2001)Google Scholar; see also Arbour, Louise, Litigation Before the ICC: Not If and When, But How? 40 Colum. J. Transnat’l L. 1, 3 (2001)Google Scholar.

63 This definition is taken from Hart, Henry M. Jr. & Sacks, Albert M., The Legal Process: Basic Problems in the Making and Application of Law 144 (Eskridge, William N. Jr. & Frickey, Philip P. eds., 1994)Google Scholar.

64 See supra text at notes 10–18.

65 In Kenneth Culp Davis’s famous formulation, “Where law ends, discretion begins, and the exercise of discretion may mean either beneficence or tyranny, either justice or injustice, either reasonableness or arbitrariness.” Kenneth Culp Davis, Discretionary Justice: A Preliminary Inquiry 3 (1969).

66 Kai Ambos, Comparative Summary of the National Reports, in The Prosecutor of a Permanent International Court, supra note 9, at 495, 525.

67 Juy-Birmann, supra note 14, at 292, 314.

68 Federico, Giuseppe Di, Prosecutorial Independence and the Democratic Requirement of Accountability in Italy, 38 Brit. J. Criminology 371, 378 (1998)Google Scholar.

69 Lynch, Gerard E., Special Prosecutors: What’s the Point? Wash. Post, May 28, 1995, at C7.Google Scholar

70 Arbour, for example, has stated that” [t]he main distinction between domestic enforcement of criminal law, and the international context, rests upon the broad discretionary power granted to the international Prosecutor in selecting the targets for prosecution.” Bergsmo, Morten, The Jurisdictional Regime of the International Criminal Court (Part II, Articles 11–19), 6 Eur. J. Crime, Crim. L. & Crim. Just. 29, 39 (1998)Google Scholar.

71 Morten Bergsmo & Pieter Kruger, Article 53: Initiation of an Investigation, in Commentary on the Rome Statute, supra note 18, at 701, 702.

72 Some observers speculate that states will lobby the Prosecutor to initiate investigations proprio motu, even if the state could have referred the case to the Prosecutor itself. “The result will be the same, but they will save the diplomatic discomforts that accompany public denunciation.” Schabas, William A., An Introduction to the International Criminal Court 100 (2001)Google Scholar.

73 Id.

74 Rome Statute, supra note 2, Art. 54(1).

75 Schabas, supra note 72, at 103; Bergsmo & Kruger, supra note 71, at 716–17.

76 In 1999 a group of experts commissioned by the Security Council to provide suggestions for improving the ICTY and ICTR issued a detailed report on the ad hoc tribunals. Describing the function of the investigatory staff of the Office of the Prosecutor, the expert group noted:

Allegations are brought to the attention of the Office of the Prosecutor and the investigations staff from numerous sources, including victims, witnesses, the media, NGOs, Governments and others. The number of complaints is so great and involves so many widespread geographic areas and individuals that it is physically impossible for the investigations staff to deal with all of them.

Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, UN Doc. A/54/634, para. 125 (1999).

77 Arbour, Louise M., Statement to the Preparatory Commission on the Establishment of an International Criminal Court (Dec. 8, 1997)Google Scholar, 1997 ICTY Y.B. 229, 232, UN Sales No. E.99.III.P.2.

78 Budget for the First Financial Period of the Court, Official Records of the First Session of the Assembly of States Parties to the Rome Statute of the International Criminal Court, September 3–10, 2002, pt. III, at 254, 283, UN Doc. ICC-ASP/1/3, UN Sales No. E.03. V.2 (2002), available at <http://www.icc-cpi.int/> [hereinafter ICC Budget],

79 Id. at 266.

80 Morten Bergsmo, Catherine Cissé, & Christopher Staker, The Prosecutors of the International Tribunals: The Cases of the Nuremberg and Tokyo Tribunals, the ICTY and ICTR, and the ICC Compared, in The Prosecutor of a Permanent International Criminal Court, supra note 9, at 121, 136–37.

81 Statement of United States Delegation, supra note 32, at 149.

82 Id.; Bergsmo, supra note 70, at 39.

83 Philippe Kirsch & Daryl Robinson, Referral by States Parties, in 1 Rome Statute of the International Criminal Court, supra note 37, at 619, 620; Antonio Marchesi, Referral of a Situation by a State Party, in Commentary on the Rome Statute, supra note 18, at 353, 358; Sharon A. Williams, Exercise of Jurisdiction: Article 13, in id. at 343, 344 n.9.

84 Rome Statute, supra note 2, Art. 42(1).

85 Bergsmo, Cisse, & Staker, supra note 80, at 136.

86 ICTY Press Release GR/P.I.S./642–e, Address by Carla Del Ponte, Prosecutor of the International Criminal Tribunal for the Former Yugoslavia, to the United Nations Security Council (Nov. 27, 2001).

87 Breitel, Charles D., Controls in Criminal Law Enforcement, 27 U. Chi. L. Rev. 427, 429 (1960)Google Scholar.

88 Nadya Sadat, Leila & Carden, Richard S., The New International Criminal Court: An Uneasy Revolution, 88 Geo. L.J. 381, 408 (2000)Google Scholar. For a further discussion of these issues in the context of the ad hoc tribunals, see Marston Danner, Allison, Constructing a Hierarchy of Crimes in International Criminal Law Sentencing 87 Va. L. Rev. 415, 419 n. 10 (2001).Google Scholar

88 Rome Statute, supra note 2, Art. 1; see also id., pmbl., Arts. 5, 8.

90 Leila Sadat suggests that the Court itself should dismiss cases under the admissibility regime that do not “rise to the level of gravity contemplated by the Statute.” Leila Nadya Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New Millennium 111 n.36 (2002).

91 Madeline Morris, Complementarity and Conflict: States, Victims, and the ICC, in The United States and the International Criminal Court, supra note 30, at 195,197; see also Wright, Ronald & Miller, Marc , The Screening/Bargaining Tradeoff 55 Stan. L. Rev. 29, 103 (2002)Google Scholar (noting that “in a system with broad criminal liability, screeners are necessarily lawmakers”).

92 Arbour, supra note 77, at 232.

93 The enforcement regime is discussed further in part III infra.

94 As one U.S. commentator has observed of the charging power, “What this amounts to is the power—not to put too fine a point on it—to ruin a person’s life.” Strauss, David A., The Independent Counsel Statute: What Went Wrong? 51 Admin. L. Rev. 651, 651 (1999)Google Scholar. Being branded as a “war criminal,” even if no conviction obtains, will no doubt exert a similar effect on individuals charged by the ICC’s Prosecutor.

95 See Prosecutor v. Milosevic, Refusal of Appeal from Decision to Impose Time Limits, No. LT-54–AR73, para. 2 (May 16, 2002).

96 See Alphons Orie, Accusatorial v. Inquisitorial Approach in International Criminal Proceedings Prior to the Establishment of the ICC and in the Proceedings Before the ICC, in 2 Rome Statute of the International Criminal Court, supra note 37, at 1439, 1481.

97 Martin, Ian, No Justice in Jakarta, Wash. Post, Aug. 27, 2002, at A15 Google Scholar; Paddock, Richard C., Ex-Police Chief, 5 Others Acquitted in East Timor Killings, L.A. Times, Aug. 16, 2002, at A3 Google Scholar.

98 Jordan, Michael J., Neighborhood Watch Goes Global, Christian Sci. Monitor, Sept. 5, 2002, at 14 Google Scholar (discussing the Indonesian cases and the admissibility provisions of the Rome Statute). In February 2003, United Nations prosecutors, working in conjunction with the United Nations Mission of Support in East Timor and under the auspices of the government of East Timor, did indict the former Indonesian armed forces chief and seven others—some of whom had been acquitted in Indonesia—charging them with persecution and murder for crimes committed in East Timor. Guilart, Guido, Wiranto Indicted on Timor but Will Stay Free, Advertiser, Feb. 26, 2003, at 31 Google Scholar.

99 Arbour, supra note 6. The 1996 Rome Agreement on Agreed Measures did lead to the “Rules of the Road” provisions that govern how the OTP reviews cases initiated by Bosnian authorities that allege violations of international humanitarian law. See Ellis, Mark S., Bringing Justice to an Embattled Region—Creating and Implementing the “Rules of the Road” for Bosnia-Herzegovina, 17 Berkeley J. Int’l L. 1 (1999)Google Scholar. Nevertheless, the ICTY still retains primacy of jurisdiction over cases from the former Yugoslavia.

100 See Klabbers, Jan, The Changing Image of International Organizations, in The Legitimacy of International Organizations 221, 22427 (Jean-Marc, Coicaud & Veijo, Heiskanen eds., 2001)Google Scholar.

101 Keohane, Robert O. & Nye, Joseph S., Power and Interdependence 5557 (2d ed. 1989)Google Scholar.

102 Jacobson, Harold K., Networks of Interdependence: International Organizations and the Global Political System 93 (2d ed. 1984)Google Scholar.

103 For a summary of this model, see Ferejohn, John, Accountability and Authority: Toward a Theory of Political Accountability, in Democracy, Accountability, and Representation 131, 133 (Przeworski, Adam et al. eds., 1999)Google Scholar.

104 See Woods, Ngaire & Narlikar, Amrita, Governance and the Limits of Accountability: The WTO, the IMF, and the World Bank, 53 Int’l Soc. Sci. J. 569, 573 (2001)Google Scholar. The European Parliament constitutes an obvious exception to this observation.

105 Jacobson, supra note 102, at 102–03.

106 Keohane, Robert O. & Nye, Joseph S. Jr., Introduction to Governance in a Globalizing World 1, 32 (Nye, Joseph S. Jr. & Donahue, John D. eds., 2000).Google Scholar

107 Bronckers, Marco C. E.J., Better Rules for a New Millennium: A Warning Against Undemocratic Developments in the W.T.O., 2 J. Int’l Econ. L. 547, 55152 (1999)Google Scholar.

108 For a general discussion of this problem at the international level, see Cary Coglianese, Globalization and the Design of International Institutions, in Governance in a Globalizing World, supra note 106, at 297. For a consideration of the trade-offs between responsiveness and independence, see Ferejohn, supra note 103, at 131–32.

109 See Turone, supra note 57, at 1137, 1142 (arguing that “the Prosecutor of the ICC is ajudicial, non-political organ”).

110 Otto Triffterer, The Preventive and the Repressive Function of the International Criminal Court, in The Rome Statute of the International Criminal Court: a challenge to Impunity, supra note 21, at 137,168. For a discussion of this phenomenon in France, see Hodgson, Jacqueline, Hierarchy, Bureaucracy, and Ideology in French Criminal Justice: Some Empirical Observations, 29 J.L. & Soc. 227, 25253 (2002)Google Scholar.

111 See Goethals, Johan, Fijnaut, Cyrille, & Parmentier, Stephan, Preface, 8 Eur. J. Crime, Crim. L. & Crim. Just. 149, 15152 (2000)Google Scholar (summarizing studies from various European states and finding this tension to constitute a “burning issue”). For a discussion of this problem in Italy, see Di Federico, supra note 68, at 378; for France, see Hodgson, supra note 110, at 227. For a comparison between the Rome Statute and the U.S. model for prosecuting senior governmental officials, see Marston Danner, Allison, Navigating Law and Politics: The Prosecutor of the International Criminal Court and the U.S. Independent Counsel, 55 Stan. L. Rev. 1633 (2003)Google Scholar.

112 Council of Europe, What Public Prosecution in Europe in the 21st Century 6 (2000).

113 Rome Statute, supra note 2, Art 42(4). The Prosecutor serves for one nonrenewable nine-year term of office. Id.

114 Id., Art. 46(1).

115 Id., Art. 46(2). Commentators have explained this difference as resulting from the decision to grant the Prosecutor proprio motu powers, as well as the fact that in many domestic systems prosecutors are more accountable to elected representatives than are judges. Stephanie Godart & David Tolbert, Removal from Office: Article 46, in Commentary on the Rome Statute, supra note 18, at 655, 660.

116 Rome Statute, supra note 2, Art. 112(2) (d).

117 Bergsmo, Cissé, & Staker, supra note 80, at 133.

118 Jacobson, supra note 102, at 119 (noting that “representative bodies [of international organizations] often find it hard to frame coherent policies”).

119 Some have argued that this aspect of the Rome Statute violates international law. See, e.g., Madeline Morris, High Crimes and Misconceptions: The ICC and Non-Party States, in International Crimes, Peace, and Human Rights: The Role of the International Criminal Court, supra note 38, at 219,234. Even if the Rome Statute does not violate international law through its assertion of jurisdiction over nationals of states not party to the treaty, given the political sensitivity of the crimes within the Statute’s jurisdiction and the implication of state criminal action inherent in criminal conviction of an official of that state, it is important as a pragmatic matter that nonparty states have a mechanism by which to influence the Prosecutor.

120 Cf. Schermers, Henry G. & Blokker, Niels M., International Institutional Law: Unity within Diversity §792 (3d rev. ed. 1995)Google Scholar; Washburn, John, The International Criminal Court Arrives—The U.S. Position: Status and Prospects, 25 Fordham Int’l L.J. 873, 877 (2002)Google Scholar.

121 States that have signed but not yet ratified the treaty may send observers to the ASP’s meetings. Rome Statute, supra note 2, Art. 112.

122 See 1 Oxford English Dictionary 87 (2d ed. 1989) (defining “accountability” as “the quality of being accountable; liability to give account of, and answer for, discharge of duties or conduct; responsibility, amenableness”); see also Delmer D. Dunn, Mixing Elected and Nonelected Officials in Democratic Policy Making: Fundamentals of Accountability and Responsibility, in Democracy, Accountability, and Representation, supra note 103, at 297,298 (noting that “ [a]ccountability at its most basic means answerability for one’s actions or behavior”).

123 I am not using “accountability” either in the sense of electoral accountability or in the sense of a mechanism for determining formal legal responsibility or liability. For an example of accountability used in this latter sense in the context of international organizations, see Reinisch, August, Securing the Accountability of Intemational Organizations, 7 Global Governance 131 (2001)Google Scholar.

124 Cf. de Haan, Jakob, The European Central Bank: Independence, Accountability, and Strategy: A Review, 93 Pub. Choice 395, 417 (1997)Google Scholar (describing research on central banks that finds no trade-off between long-term accountability and independence because “a central bank, continuously conducting a policy which lacks broad political support, will sooner or later be overridden”).

125 See, e.g., Morrison v. Olson, 487 U.S. 654,728 (1988) (Scalia J., dissenting); Brian Grosman, The Prosecutor: an Inquiry into the Exercise of Discretion (1969); Hodgson, supra note 110, at 235–36; J. R. Spencer, The English System, in European Criminal Procedures, supra note 12, at 142,152–53.

126 For explanations of “horizontal accountability,” see The Self-Restraining State: Power and Accountability in New Democracies (Schedler, Andreas et al. eds., 1999)Google Scholar (focusing on horizontal methods of accountability, particularly through independent, nonelective specialized bodies of oversight that operate intrastate); Woods & Narlikar, supra note 104, at 574.

127 For references to “indirect accountability,” see Robert, Elgie, Democratic Accountability and Central Bank Independence: Historical and Contemporary, National and European Perspectives, 21 W. Eur. Pol. 53 (1998)Google Scholar; Howse, Robert & Nicolaidis, Kalypso, Enhancing WTO Legitimacy: Constitutionalization or Global Suisidiarity 16 Governance 73, 8690 (2003)Google Scholar; Michael Laver & Kenneth A. Shepsle, Government Accountability in Parliamentary Democracy, in Democracy, Accountability, and Representation, supra note 103, at 279, 279; Nye, Joseph S. Jr., Globalization’s Democratic Deficit: How to Make International Institutions More Accountable, Foreign Aff. July-Aug. 2001, at 2 CrossRefGoogle Scholar (arguing that the U.S. Supreme Court and Federal Reserve Board demonstrate indirect accountability).

128 See Nye, supra note 127, at 2; Patel, Bimal N., The Accountability of International Organisations: A Case Study of the Organisation for the Prohibition of Chemical Weapons, 13 Leiden J. Int’l L. 571, 574, 595 (2000)Google Scholar (noting the absence of scholarly analysis of the accountability of international organizations). The accountability of certain organizations, however, particularly the international economic institutions, has been examined in some depth. See, e.g. Fox, Jonathan A., The World Bank Inspection Panel: Lessons from the First Five Years, 6 Global Governance 279 (2000);Google Scholar Stiglitz, Joseph E., Democratizing the International Monetary Fund and the World Bank: Governance and Accountability, 16 Governance 111 (2003)CrossRefGoogle Scholar; Woods & Narlikar, supra note 104, at 573.

129 In order to take advantage of the complementarity regime, however, states must enact domestic legislation allowing them to investigate and prosecute the crimes within the ICC’s jurisdiction. States must also enact legislation that allows them to cooperate with the Court on investigative and evidentiary matters. See Rome Statute, supra note 2, Art. 88; Oosterveld, Valerie, Perry, Mike, & McManus, John, The Cooperation of States with the International Criminal Court, 25 Fordham Int’l L. J. 767, 787 (2002)Google Scholar.

130 They must, however, be willing to investigate the case and will still be subject to the Prosecutor’s challenge of their ability and willingness to do so.

131 The Security Council used this power in the first month the ICC came into existence. SC Res. 1422 (July 12, 2002).

182 Rome Statute, supra note 2, Arts. 114, 115.

133 Id., Art. 115; see also Witschel, Georg, Financial Regulations and Rules of the Court, 25 Fordham Int’l L J. 665 (2002).Google Scholar

134 Rome Statute, supra note 2, Art. 116.

135 See ICTY Press Release JDH/P.I.S./690–e, Address by Judge Claude Jorda, President of the International Criminal Tribunal for the Former Yugoslavia, to the United Nations Security Council (July 26, 2002) (outlining the ICTVs “exit strategy”).

136 Prosecutor v. Blaškić, Request for Review, No. IT-95–14–AR108 bis, para. 26 (Oct. 26, 1997).

137 Gallarotti, Giulio M. & Preis, Arik Y., Politics, International Justice, and the United States: Toward a Permanent International Criminal Court, 4 Ucla J. Int’l L. & Foreign Aff. 1, 28 (1999)Google Scholar.

138 Sadat & Carden, supra note 88, at 415.

139 Jacobson, supra note 102, at 77–78.

140 Oosterveld, Perry, & McManus, supra note 129, at 767.

141 See Katz Cogan, Jacob, The Problem of Obtaining Evidence for International Criminal Courts, 22 Hum. Rts. Q. 404, 405 (2000)Google Scholar (comparing domestic and international criminal systems).

142 Cf. Address of Antonio Cassese, President of the International Criminal Tribunal for the Former Yugoslavia, to the General Assembly of the United Nations (Nov. 7,1995), 1995 ICTY Y.B. 311, 312–13, UN Sales No. E.96.III.P.1. 143 SADAT, supra note 90, at 230.

144 Cogan, supra note 141, at 411.

145 See Simons, Marlise, Archives Farce Review of Croat’s Atrocity Case, N.Y. Times, Nov. 21, 2002, at A14.Google Scholar

146 Hipkins, Dominic, Blaskic Appeal: Defence Lawyer Reveals New Evidence, IWPR [Institute for War & Peace] Rep. (Jan. 28, 2002), at <http://www.iwpr.net>Google Scholar.

147 Rome Statute, supra note 2, Art. 86.

148 Id., Art. 99(1) (“Requests for assistance shall be executed in accordance with the relevant procedure under the law of the requested State . . .”). This provision does not, however, mean that domestic laws may be invoked for denying cooperation with the Court, unless cooperation by that state would violate “an existing fundamental legal principle of general application.” Id., Art. 93(3); Annalisa Ciampi, Other Forms of Cooperation, in 2 Rome Statute of the International Criminal Court, supra note 37, at 1705, 1732.

149 Rome Statute, supra note 2, Art. 87(5); Claus Kreß, Article 86: General Obligation to Cooperate, in Commentary on the Rome Statute, supra note 18, at 1051, 1051.

150 Rome Statute, supra note 2, Art. 99(4).

151 Bert Swart & Göran Sluiter, The International Criminal Court and International Criminal Co-operation, in Reflections on the International Criminal Court, supra note 37, at 91, 115.

152 Rome Statute, supra note 2, Art. 57(3) (d) (emphasis supplied).

153 Fabricio Guariglia & Kenneth Harris, Article 5 7: Functions and Powers of the Pre-Trial Chamber, in Commentary on the Rome Statute, supra note 18, at 743, 751.

154 Rome Statute, supra note 2, Art. 87(7).

155 Swart & Sluiter, supra note 151, at 122. This power has been described as “naming and shaming.” Schabas, supra note 72, at 107. It is not likely to be particularly effective. Cogan, supra note 141, at 424. Some commentators suggest that the ASP might be able, under general international law principles, to consider “the appropriateness of collective countermeasures, such as economic sanctions.” Ciampi, supra note 148, at 1635. The Rome Statute does not, however, explicitly contemplate such measures.

156 Schabas, supra note 72, at 104.

157 Swart & Sluiter, supra note 151, at 120.

158 Archbold International Criminal Courts: Practice, Procedure and Evidence 68 (Rodney Dixon et al. eds., 2003) [hereinafter Archbold International Criminal Courts].

159 Rome Statute, supra note 2, Art. 93(4).

160 See Wedgwood, Ruth, International Criminal Tribunals and State Sources of Proof: The Case of Tihomir Blaškić, 11 Leiden J. Int’l L. 635, 64648 (1998)Google Scholar.

161 Rome Statute, supra note 2, Art. 72; Archbold International Criminal Courts, supra note 158, at 29; Peter Malanczuk, Protection of National Security Interests, in 2 Rome Statute of the International Criminal Court, supra note 37, at 1371,1386.

162 Schabas, supra note 72, at 129–30. States that stonewall the Court may be pressured by other states or NGOs to cooperate with the Court. Especially if the ICC enjoys some degree of international legitimacy, stonewalling the Court may be a costly strategy for states. This dynamic is further discussed in part IV infra.

163 Interview with Gavin F. Ruxton, senior legal advisor, Office of the Prosecutor, ICTY, in The Hague, the Netherlands (May 21,2002). The appeals chamber of the ICTY has concluded thatjournalists can be compelled to testify only in exceptional circumstances. Marlise Simons, U.N. Court Grants Special Legal Protection to War Reporters, N.Y. Times, Dec. 12, 2002, at A10.

164 See Ratner, Steven R. & Abrams, Jason S., Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy 263 (2d ed. 2001)Google Scholar.

165 For a description of the ICTY experience, see Mundis, Daryl A., Reporting Non-Compliance: Rule 7bis, in Essays on ICTY Procedures and Evidence 421 (May, Richard et al. eds., 2001)Google Scholar.

166 Gabrielle Kirk McDonald, Address to the General Assembly of the United Nations (Nov. 19, 1998), 1998 ICTY Y.B., supra note 58, at 342, 342.

167 See Richard J. Goldstone & Gary Jonathan Bass, Lessons from the International Criminal Tribunals, in The United States and the International Criminal Court, supra note 30, at51, 57.

168 Arbour, supra note 77, at 230.

169 Gabrielle Kirk McDonald, An Effective International Criminal Court: The Principal Legal Concerns, Remarks Made at the Aspen Institute Justice and Society Programme (Mar. 6, 1998), 1998 ICTY Y.B., supra note 58, at 403, 403.

170 See Anne-Marie, Slaughter, The Real New World Order, Foreign Aff., Sept.-Oct. 1997, at 183 Google Scholar; Spiro, Peter J., Globalization and the (Foreign Affairs) Constitution, 63 Ohio St. L. J. 649, 66771 (2002)Google Scholar.

171 I am grateful to Laurence Heifer for highlighting this point.

172 Schabas, William A., Case Report: Barayagwiza v. Prosecutor, in 94 AJIL 563 (2000)CrossRefGoogle Scholar.

173 Id.

174 See Prosecutor v. Barayagwiza, Motion to Review and/or Nullify Arrest and Detention, No. ICTR-97–19–I (Nov. 17, 1998). See generally Schabas, supra note 172.

175 Prosecutor v. Barayagwiza, Appeals Decision, No. ICTR-97–19–DP, paras. 67,71 (Nov. 3,1999). It also found that Barayagwiza’s detention by the ICTR for eleven months without being informed of the charges against him contravened his human rights. Id., para. 85.

176 Id., para. 106.

177 Katz Cogan, Jacob, International Criminal Courts and Fair Trials: Difficulties and Prospects, 27 Yale J. Int’l L. 111, 135 (2002)Google Scholar.

178 Momeni, Mercedeh, Why Barayagwiza Is Boycotting His Trial at the ICTR: Lessons in Balancing Due Process Rights and Politics, 7 ILSA J. Int’l & Comp. L. 315, 319 (2001)Google Scholar.

179 Cogan, supra note 177, at 135.

180 Barayagwiza v. Prosecutor, Request for Review or Reconsideration, No. ICTR–97–19–AR72, para. 7 (Mar. 31, 2000).

181 Id., para. 34.

182 Id.

183 Id., para. 71.

184 Gallarotti & Preis, supra note 137, at 31.

185 Id.

186 Carla Del Ponte, the newly appointed Prosecutor of the ICTR, issued a press release on November 9, 1999, in which she acknowledged the judges’ criticism of the prosecution’s actions in the case and pledged to “take appropriate measures and . . . ensure that Prosecutions of other cases are conducted with proper dispatch in future.” ICTY Press Release PR/P.I.S./446–E, Carla Del Ponte, Prosecutor of the International Criminal Tribunal for Rwanda, Concerning the Case of Jean-Bosco Barayagwiza (Nov. 9, 1999).

187 Human Rights Watch, for example, describes its mission in the following way: “We stand with victims and activists to prevent discrimination, to uphold political freedom, to protect people from inhumane conduct in wartime, and to bring offenders to justice.” Human Rights Watch, About Human Rights Watch, at http://www.hrw.org/about (visited July 24, 2003). The mission statement for the Lawyers Committee for Human Rights states in part: “Since 1978, the Lawyers Committee for Human Rights has worked in the U.S. and abroad to . . . help build a strong international system of justice and accountability for the worst human rights crimes.” Lawyers Committee for Human Rights, Our Mission, at <http://www.lchr.org/aboutlchr> (visited July 24, 2003).

188 William R. Pace & Jennifer Schense, The Rok of Non-Governmental Organization*, in 1 Rome Statute of the International Criminal Court, supra note 37, at 105, 106–07.

189 The International Criminal Court: Protecting American Servicemen and Officials from the Threat of International Prosecution: Hearing Before the Senate Comm. on Foreign Relations, 106th Cong. 12 (2000) (statement of Prof. Jeremy Rabkin) [hereinafter Senate Hearing].

190 The Prosecutor of the ad hoc tribunals, for example, has worked with NGOs to provide them with guidelines about the collection of evidence that could be used at trial. Activities of the Tribunal, 1994 ICTY Y.B., supra note 7, at 28–29 (describing contacts with NGOs). NGOs also played a significant role in gathering the evidence used by Spanish magistrate Baltazar Garzón to issue an arrest warrant for former Chilean leader Augusto Pinochet on charges of serious international crimes, including torture. See Naomi Roht-Arriaza, The Pinochet Precedent and Universal Jurisdiction,

35 New Eng. L. Rev. 311, 318 (2001).

191 Interview with Richard Dicker, director, international justice programs, Human Rights Watch, in St. Louis (Oct. 11, 2002).

192 Interview with Graham T. Blewitt, deputy prosecutor, International Criminal Tribunal for the Former Yugoslavia, in The Hague, the Netherlands (May 21, 2002).

193 See Rome Statute, supra note 2, Art. 116 (stating that “the Court may receive and utilize, as additional funds, voluntary contributions from Governments, international organizations, individuals, corporations and other entities”).

194 Id., Art. 15(2).

195 Jordan, supra note 98, at 14.

196 Blewitt, supra note 192.

197 Chayes, Abram & Handler Chayes, Antonia, The New Sovereignty: Compliance with International Regulatory Agreements 251 (1995)Google Scholar (“In a real sense [NGOs] supply the personnel and resources for managing compliance that states have become increasingly reluctant to provide to international organizations . . .”).

198 See, e.g., Otto, Dianne, Nongovernmental Organizations in the United Nations System: The Emerging Role of International Civil Society, 18 Hum. Rts. Q. 107 (1996)CrossRefGoogle Scholar.

199 See Abram Chayes & Anne-Marie Slaughter, The ICC and the Future of the Global Legal System, in The United States and the International Criminal Court, supra note 30, at 237, 242.

200 Spiro, Peter J., The New Sovereigntists: American Exceptionalism and Its False Prophets, Foreign Aff., Nov.-Dec. 2000, at 12 Google Scholar.

201 See, e.g., Spiro, Peter J., Accounting for NGOs, 3 Cm. J. Int’l L. 161 (2002)Google Scholar; Thakur, Ramesh, Human Rights: Amnesty International and the United Nations, 31 J. Peace Res. 143 (1994)CrossRefGoogle Scholar; Wapner, Paul, Paradise Lost? NGOs and Global Accountability, 3 Chi. J. Int’l L. 155 (2002)Google Scholar.

202 Interview with Richard Dicker, director, international justice programs, Human Rights Watch, in New York (July 2, 2002). For this reason, Dicker argues that “there needs to be consultation and exchange among NGOs worldwide.” Telephone interview with Richard Dicker (Feb. 18, 2003).

203 See, e.g., The International Criminal Court: Hearings Before the House Comm. on International Relations, 106th Cong. 75 (2000) (prepared statement of John R. Bolton, senior vice president, American Enterprise Institute).

204 Its 1995 annual report declared that”[p]erhaps the most powerful tool at the disposal of the Tribunal is international public opinion.” Fifth Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, UN Doc. A/53/219– S/1998/737 (Aug. 10,1998), reprinted in 1998 ICTY Y.B., supra note 58, at 270, 315; see also Ignatieff, Michael, Virtual War: Kosovo and Beyond 126 (2000)Google Scholar; Meron, Theodor, Answering for War Crimes: Lessons from the Balkans, Foreign Aff., Jan.-Feb. 1997, at 4 Google Scholar.

205 Williams, Daniel, Yugoslavia Feels Pressure to Extradite; Millions Are at Stake over War Crimes, Wash. Post, Feb. 16, 2002, at A22 Google Scholar; see also Nizich, Ivana, International Tribunals and Their Ability to Provide Adequate Justice: Lessons from the Yugoslav Tribunal, 7 ILSA J. Int’l & Comp. L. 353, 355 (2001)Google Scholar.

206 Pierre-Richard Prosper, ambassador-at-large for war crimes issues, Remarks, Rewards for Justice: Fugitives from the International Criminal Tribunal for Rwanda (July 29, 2002), at <http://www.state.gov>.

207 Press Release ICTR/INFO-9–2–325.EN, First ICTR Suspect Arrested in the Democratic Republic of Congo (Sept. 30,2002).

208 See Robert Badinter, International Criminal Justice: From Darkness to Light, in 2 Rome Statute of the International Criminal Court, supra note 37, at 1931, 1935; Cassese et al., supra note 37, at 1901, 1910.

209 For discussion of this dynamic in other contexts, see Bodansky, Daniel, The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?93 AJIL 596, 603 (1999)Google Scholar; Caron, David D., The Legitimacy of the Collective Authority of the Security Council, 87 AJIL 552 (1993)CrossRefGoogle Scholar.

210 I recognize that the legitimacy of the Prosecutor and the legitimacy of the Court may not be coextensive. Other institutions within the ICC—particularly the judiciary—also have an important role in the Court’s legitimacy. In this article, however, I focus only on that aspect of the Court’s legitimacy that derives from the actions of the Prosecutor.

211 See Bodansky, supra note 209, at601;Jean-MarcCoicaud, International Democratic Culture and Its Sources of Legitimacy: The Case of Collective Security and Peacekeeping Operations in the 1990s, in The Legitimacy of International Organizations, supra note 100, at 256, 258.

212 See the essays collected in The legitimacy of International organizations, supra note 100; Thomas M. Franck, The Power of Legitimacy Among Nations 49 (1990); Bodansky, supra note 209, at 604.

213 See generally G. C. A. Junne, International Organizations in a Period of Globalization: New (Problems of) Legitimacy, in The Legitimacy of International Organizations, supra note 100, at 189 (describing possible sources of legitimacy).

214 Chayes & Chayes, supra note 197, at 127.

215 Bodansky, supra note 209, at 605.

216 See Arthur Isak Applbaum, Culture, Identity, and Legitimacy, in Governance in a Globalizing World, supra note 106, at 319, 325 (contrasting “empirical legitimacy” with “moral legitimacy”).

217 Hart & Sacks, supra note 63, at 143–44.

218 As Robert Howse has noted in the context of the WTO, “ [T] he farther removed the decision maker is from responsibility to a particular electorate, the greater the extent to which legitimacy depends on procedural fairness itself.” Robert Howse, The Legitimacy of the World Trade Organization, in The Legitimacy of International Organizations, supra note 100, at 355, 377.

219 See Heifer, Laurence R. & Anne-Marie, Slaughter, Toward a Theory of Effective Supranational Adjudication, 107 Yale L.J. 273, 31213 (1997)Google Scholar.

220 See, e.g., U.S. Secretary of Defense Donald Rumsfeld, Statement on the ICC Treaty, U.S. Dep’t of Defense News Release No. 232–02 (May 6, 2002), at <http://www.defenselink.mil/news>.

221 See Samantha Power, The United States and Genocide Law: A History of Ambivalence, in The United States and the International Criminal Court, supra note 30, at 165,172.

222 Rome Statute, supra note 2, Art. 54(1).

223 See §152 StPO II; Safferling, supra note 62, at 172.

224 Royal Comm’n on Criminal Procedure, Report, 1981, Cmnd. 8092–1, at 127–28.

225 See International Association of Prosecutors, the Code of Professional Conduct for Prosecutors of the International Criminal Court, Art. 1(9), at <http://www.iap.nl.com> (visited July 24,2003). While this draft code of conduct does not address guidelines regarding prosecutorial discretion, it does emphasize the importance of ethical prosecutorial behavior.

226 See Beatrice Le Fraper du Hellen, Remarks at Roundtable Discussion: Prospects for the Functioning of the International Criminal Court, in The Rome Statute of the International Criminal Court: A Challenge to Impunity, supra note 21, at 311, 311; Morris, supra note 119, at 243; Weschler, supra note 30, at 95.

227 Weschler, supra note 30, at 95.

228 Statement of United States Delegation, supra note 32, at 149.

229 Cynics might observe that the U.S. fears that the ICC might engage in selective prosecution derive from the nation’s domestic experience, where minorities frequently charge—with some statistical support—that they are unfairly singled out by police when investigating crimes. See McAdams, Richard H., Race and Selective Prosecution: Discovering the Pitfalls of Armstrong, 73 Chi. - Kent L. Rev. 605 (1998)Google Scholar.

230 Davis, supra note 65, at 98.

231 Hong Kong Special Administrative Region, Department of Justice, the Statement of Prosecution Policy and Practice, Introduction (Oct. 2002), at <http://www.info.gov.hk/justice/new/depart> [hereinafter Hong Kong Guidelines].

232 ICTY, Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, Final Report to the Prosecutor, para. 3 (June 8,2000), reprinted in 39 ILM 1257 (2000), available at <http://www.un.org/icty> [hereinafter NATO Report].

233 Professor Michael Mandel et al., Notice of the Existence of Information Concerning Serious Violations of International Humanitarian Law Within the Jurisdiction of the Tribunal; Request that the Prosecutor Investigate Named Individuals for Violations of International Humanitarian Law and Prepare Indictments Against Them Pursuant to Articles 18.1 and 18.4 of the Tribunal’s Statute (May 6, 1999), available at <http://counterpunch.org/complain t.html>; see also Mandel, Michael, Politics and Human Rights in International Criminal Law: Our Case Against NATO and the Lessons to Be Learned from It, 25 Fordham Int’l L.J. 95 (2001)Google Scholar.

234 NATO Report, supra note 232, para. 3; Laursen, Andreas, NATO, the War over Kosovo, and the ICTY Investigation, 17 Am. U. Int’l L. Rev. 765, 77071 (2002)Google Scholar.

235 Trueheart, Charles, War Crimes Court Is Looking at NA TO; Prosecutor Reviews Yugoslav Attacks, Wash. Post, Dec. 29, 1999, at A20 Google Scholar.

236 NATO Report, supra note 232, para. 12.

237 Daly, Emma, Dossier of NATO ‘Crimes’ Lands in Prosecutor’s Lap; Either I Pursue This or I Quit, Carla Del Ponte Tells Emma Daly in The Hague, Observer, Dec. 26, 1999, at 15 Google Scholar.

238 U.S. Secretary of Defense Willliam S. Cohen, for example, reportedly stated: “It was an outrage that the Yugoslav Tribunal challenged us.” Senate Hearing, supra note 189, at 33 (statement of Prof. Jeremy Rabkin).

239 Trueheart, Charles, Taking NATO to Court: Tribunal Reviews Professors’ Charges That Alliance Committed War Crimes, Wash. Post, Jan. 20, 2000, at A15 Google Scholar.

240 NATO Report, supra note 232, para. 7.

241 Id., para. 90.

242 Laursen, supra note 234, at 771.

243 Trueheart, supra note 239, at A15.

244 Benvenuti, Paolo, The ICTY Prosecutor and the Review of the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, 12 Eur. J. Int’l L. 503, 507 (2001)Google Scholar; Mandel, supra note 233, at 96–97.

245 Sarah B. Sewall et al., The United States and the International Criminal Court: An Overview, in The United States and the International Criminal Court, supra note 30, at 1,18.

246 Casey, Lee A., Assessment of the United States Position: The Case Against the International Criminal Court, 25 Fordham Int’l L.J. 840, 848 (2002)Google Scholar.

247 Chesterman, Simon, No Justice Without Peace ? International Criminal Law and the Decision to Prosecute, in Civilians in War 145, 151 (Chesterman, Simon ed., 2001)Google Scholar.

248 NATO Report, supra note 232, para. 2.

249 Id., para. 5.

250 Id.

251 Id. (emphasis supplied).

252 Id., para. 90.

253 Many have criticized the report’s analysis. One commentator, for example, has labeled it “incoherent.” Laursen, supra note 234, at 776; see also Benvenuti, supra note 244, at 526 (describing the report as “largely inadequate to its task”).

254 ICTY Press Release CC/PIU/314, Statement by the Prosecutor Following the Withdrawal of the Charges Against 14 Accused (May 8,1998) (describing the prosecutorial strategy of the OTP as “maintaining an investigative focus on persons holding higher levels of responsibility, or on those who have been personally responsible for the exceptionally brutal or otherwise extremely serious offences”); Murphy, Sean D., Progress and Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia, 93 AJIL 57, 59 n.4 (1999)CrossRefGoogle Scholar.

255 Blewitt, supra note 192.

256 As this article was going to press, the ICCs first Prosecutor, Luis Moreno Ocampo, announced that he will promulgate prosecutorial guidelines. An early draft of these guidelines, which are entitled Regulations of the Office of the Prosecutor, is available at <http://www.icc-cpi.int/otp/> (visited June 21,2003). Because of the timing of their issuance, this article does not provide a detailed analysis of them, although it does offer general recommendations as to the advisability of guidelines, as well as their content. The Office of the Prosecutor has also issued a draft policy paper, which discusses some of the issues examined in this article. Draft Paper on Some Policy Issues Before the Office of the Prosecutor for Discussion at the Public Hearing in The Hague on 17 and 18 June 2003, available at id. (visited July 31,2003).

257 Introduction to Hong Kong Guidelines, supra note 231.

258 Van Dijk, Jan J. M., The Use of Guidelines by Prosecutors in the Netherlands 1 (1983)Google Scholar; Brants, Chrisje & Field, Stewart, Discretion and Accountability in Prosecution: A Comparative Perspective on Keeping Crime out of Court, in Criminal Justice in Europe: A Comparative Study 127, 143 (Fennell, Phil et al. eds., 1995)Google Scholar.

259 For the Canadian guidelines, see Canada, Dep’t of Justice, Federal Prosecution Service Deskbook (2d ed. 2000), available at <http://canada.justice.gc.ca/en/dept/pub> [hereinafter Canadian Prosecution Deskbook].

260 U.S. Dep’t of Justice, Principles of Federal Prosecution (Sept. 2000), available at http://www.usdoj.gov [hereinafter DOJ Principles of Federal Prosecution].

261 England and Wales, The Crown Prosecution Service, the Code for Crown Prosecutors, available at <http://www.cps.gov.uk> [hereinafter Code for Crown Prosecutors] (visited July 24, 2003).

262 See Commonwealth Director of Public Prosecutions (Australia), Prosecution Policy of the Commonwealth, available at <http://www.cdpp.gov.au> [hereinafter Prosecution Policy of Australia] (visited July 24, 2003).

263 Brigitte Pesquié, The Belgian System, in European Criminal Procedures, supra note 12, at 81, 91.

264 Const. Art. 151, §1; Perrodet, supra note 16, at 426.

265 The Belgian guidelines do not exist in a single document, but instead in the form of circulars on a variety of topics. They are available at <http://www.just.fgov.be> (visited July 24, 2003).

266 Perrodet, supra note 16, at 447–48.

267 COE, Role of Public Prosecution, supra note 8, at 41.

268 Id at 42.

269 Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Guidelines on the Role of Prosecutors, UN Doc. A/CONF.144/28/Rev.l, at 189 (1990).

270 Rome Statute, supra note 2, Art. 53(2).

271 Id., Art. 58(1) (a).

272 See, e.g., Canadian Prosecution Deskbook, supra note 259, §15.3.1; Code for Crown Prosecutors, supra note 261, §§5.1–5.4.

273 The British experience with guidelines might prove instructive here. In 1994 the British Crown Prosecution Service revised its Code for Crown Prosecutors. One of the changes made in the revision included articulating specific factors that might be included in prosecutorial assessments of whether a particular prosecution is in the “public interest.” Research on the effects of these changes suggests that they led prosecutors to think more precisely about whether particular charging or declination decisions conformed to the public interest. Hoyano, Allan et al., A Study of the Impact of the Revised Code for Crown Prosecutors, 1997 Crim. L. Rev. 556, 561 Google Scholar.

274 International justice scholarship generally cites five goals for international prosecutions: (1) truth telling, (2) punishing perpetrators, (3) promoting healing for victims, (4) advancing the rule of law, and (5) facilitating national reconciliation. Fletcher, Laurel E. & Weinstein, Harvey M., Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation, 24 Hum. Rts. Q. 573, 586 (2002)Google Scholar.

275 For a discussion of deterrence and retribution as it relates to international sentencing practices, see Danner, supra note 88, at 444–53.

276 It should be noted that, despite the relative clarity of this policy, it poses difficulties in implementation. As Prosecutor Del Ponte told the Security Council, one should not “fall into the trap of polarising accused into big fish and small fish. A number of the accused under investigation in the ICTY and the ICTR played a very nasty role somewhere in between these two extremes—as key organisers and motivators at the district or local level.” ICTY Press Release GR/P.I.S./642–e, supra note 86. ICTY Deputy Prosecutor Blewitt has emphasized that prosecutorial discretion is especially important when deciding which individuals, while not in the highest echelon of the leadership, merit prosecution in the international forum. Blewitt, supra note 192.

277 Blewitt, supra note 192.

278 Id.

279 The question of the criminal liability of senior officers is essentially one involving the substantive law of the Rome Statute. Judging by the jurisprudence of the ad hoc tribunals, the ICC judges may interpret principles like command responsibility expansively. See Damaška, Mirjan, The Shadow Side of Command Responsibility, 49 Am. J. Comp. L. 455, 45556 (2001)CrossRefGoogle Scholar. If the ICC follows a similar course and the Prosecutor aggressively pushes the boundaries of command responsibility, the legitimacy of the Court may decrease.

280 The use of military force alone, however, may constitute a crime in and of itself once the crime of aggression is defined and operational in the Rome Statute.

281 This is not to say that the nationality of the accused should play no role in the prosecutorial decisions of whom to indict. Some of the crimes within the jurisdiction of the ICC, particularly that of genocide, require that the accused have acted against a “national, ethnical, racial, or religious group.” Rome Statute, supra note 2, Art. 6. In such cases, the nationality of the accused and of his or her victims may be relevant.

282 Simpson, Daniel, Croatia Protects a General Charged with War Crimes: In Rubble of Village Serb Calls for Vengeance, N.Y. Times, Dec. 3, 2002, at A10 Google Scholar.

283 The JCTY’S indictment of General Janko Bobetko was delivered to him, although the arrest warrant was suspended because of his ill health. He died in April 2003. Partos, Gabriel, Obituary: General Janko Bobetko: Croatian Army Chief Charged with War Crimes, Independent (London), Apr. 30, 2003, at 18 Google Scholar.

284 Evaluating the seriousness of a crime might include consideration, for example, of the number of victims and the type of harm suffered by the victims.

285 In their explanation of the “public interest,” the Canadian prosecutorial guidelines, for example, state that “the more serious the offence, the more likely the public interest will require that a prosecution be pursued.” The Public Interest Criteria, Canadian Prosecution Deskbook, supra note 259, §15.3.2.

286 Fletcher & Weinstein, supra note 274, at 586.

287 See generally Goldstone & Fritz, supra note 4.

288 Chesterman, supra note 247, at 151; Gallarotti & Preis, supra note 137, at 35.

289 Ignatieff, supra note 204, at 119–20.

290 Simons, Marlise, Proud but Concerned: Tribunal Prosecutor Leaves, N.Y. Times, Sept. 15, 1999, at A3 Google Scholar.

291 Sisk, Richard, A Rush to Indict Slobo: Prosecutor Feared U.S. Would Let Him off Hook, Daily News, May 28,1998, at 8 Google Scholar.

292 In July 2003, the ICC Prosecutor announced that his office was conducting a preliminary examination into atrocities that have occurred in eastern Congo since July 1, 2002. Simons, Marlise, Court Likely to Take up Congo First, N.Y. Times, July 16, 2003, at A3 Google Scholar.

293 The Australian Prosecution Policy of the Commonwealth, for example, lists this factor as a consideration in determining whether or not a prosecution is in the “public interest.” Prosecution Policy of Australia, supra note 262, para. 2.10(p). The British Code for Crown Prosecutors, by contrast, does not mention this criterion.

294 See Stephen, Chris, Comment: Milošević and the Al Capone Dimension, IWPR Rep. (Apr. 16, 2003), at <http://www.iwpr.net>.Google Scholar

295 Hong Kong Guidelines, supra note 231, § 11.1 (a).

296 For a discussion of factors potentially relevant to the Prosecutor’s consideration of this question, see Goldstone & Fritz, supra note 4, at 663–64.

297 Charge Screening: General Principles, Canadian Prosecution Deskbook, supra note 259, §13.2.1.

298 The U.S. federal guidelines contain a similar provision. DOJ Principles of Federal Prosecution, supra note 260, at 9–27.270 (directing that “[w]henever the attorney for the Government declines to commence or recommend Federal prosecution he/she should ensure that his/her decision and the reasons therefor are communicated to the investigative agency involved and to any other interested agency, and are reflected in the office files”).

299 SC Res. 1329 (Nov. 30, 2000).

300 See Abrams, Norman, Internal Policy: Guiding the Exercise of Prosecutorial Discretion, 19 UCLA L. Rev. 1, 2930 (1971)Google Scholar; Frase, Richard S., The Decision to File Federal Criminal Charges: A Quantitative Study of Prosecutorial Discretion, 47 U. Chi. L. Rev. 246, 297 (1979)Google Scholar.

301 See Philip Alston, The Myopia of the Handmaidens: International Lawyers and Globalization, 8 Eur. J. Int’l L.435, 447 (1997).

302 Peter L. Lindseth, Democratic Legitimacy and the Administrative Character of Supranationalism: The Example of the European Community, 99 Colum. L. Rev. 628, 634 (1999).

303 Nye, supra note 127, at 2.

304 Woods, Ngaire, Making the IMF and the World Bank More Accountable, 77 Int’l Aff. 83, 90 (2001)Google Scholar.

305 Id.; Fox, supra note 128, at 279.

306 International Law Association, Committee on the Accountability of International Organisations, Third Report Consolidated, Revised and Enlarged Version of Recommended Rules and Practices (“RRP-s”) (Jan. 2002), available at <http://www.ila-hq.org/html/layout_committee.htm>.

307 Id. at 3.

308 Id. at 6.

309 Andreas Schedler, Conceptualizing Accountability, in The Self-Restraining State: Power and Accountability in New Democracies, supra note 126, at 13, 14.

310 Calvert-Smith, David, The Code for Crown Prosecutors, 150 New L.J. 1494, 1494 (2000)Google Scholar.

311 Blewitt, supra note 192.

312 Kralev, Nicholas, Tribunal Considers U.S. Job Applicants, Wash. Times, Oct. 22, 2002, at A13 Google Scholar (describing conversation with Bruno Cathala, director of common services).

313 Patel, supra note 128, at 582.

314 See Abrams, supra note 300, at 42, 52.

315 See Simons, Michael A., Prosecutorial Discretion and Prosecution Guidelines: A Case Study in Controlling Federalization, 75 N.Y.U. L. Rev. 893, 962 (2000)Google Scholar (discussing U.S. guidelines).

316 DOJ Principles of Federal Prosecution, supra note 260, at 9–27.150.

317 Canadian Prosecution Deskbook, supra note 259, at 2. In England, however, the courts have held that, in extreme cases, prosecutorial contravention of the Code for Crown Prosecutors may be the subject of judicial review. Burton, Mandy, Reviewing Crown Prosecution Service Decisions Not to Prosecute, 2001 Crim. L. Rev. 374 Google Scholar.

318 Hoyano et al., supra note 282, at 558.

319 See Sklansky, David, Starr, Singleton, and the Prosecutor’s Role, 26 Fordham Urb. L.J. 509, 532 (1999)Google Scholar.

320 See Franck, supra note 212, at 179 (noting that “checkerboarding,” or inconsistent application of a rule or standard, undermines the legitimacy of that standard).

321 Overreliance on rules without considering changed conditions or the specifics of particular situations is a risk endemic to many international bureaucracies. See Barnett, Michael N. & Finnemore, Martha, The Politics, Power, and Pathologies of International Organizations, 53 Int’l Org. 699, 72021 (1999)Google Scholar.

322 Rome Statute, supra note 2, Art. 42(3).

323 Roht-Arriaza, supra note 190, at 311. The Spanish criminal procedure system allows criminal prosecutions to go forward without the state prosecutor’s agreement and participation. Id. at 319.

324 Simons, Marlise, Belgium Puts Limits on War Crimes Law, Int’l Herald Trib., Apr. 7, 2003, at 7.Google Scholar

325 Keinon, Herb, Belgian Amendment Likely to End Sharon Prosecution, Jerusalem Post, Apr. 3, 2003, at 1.Google Scholar

326 Bernstein, Richard, Belgium Rethinks Its Prosecutorial Zeal, N.Y. Times, Apr. 1, 2003, at A8 Google Scholar.

327 Human Rights Watch, Belgium, Press Release, Anti-Atrocity Law Limited (Apr. 5, 2003), available at <http://www.hrw.org/press/2003/04/belgium040503.htm>.

328 Prideaux, John, Belgium Votes to Scrap War Crimes Law, Fin. Times (London), July 30, 2003, at 6 Google Scholar.

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