chapter 9 The of the International Criminal – Inquistorial or Adversarial? Discretion to Initiate Investigation and to Prosecute in the of the icc

Karolina Kremens

Introduction

The discussion whether the proceedings before the International Criminal Court [icc]1 are more inquisitorial or adversarial remains an ongoing issue in the literature regarding international criminal proceedings.2 Although there is no strict dichotomy between Continental and legal traditions they can be presented as containing certain features that allow for differentiat- ing one from another. The difference between the systems can be simplified in a statement that the common law criminal is based on the adversarial model where both parties present before an impartial , while in the inquisitorial style is recognized in which the court takes an active role in seeking the truth.3

1 Rome of the International Criminal Court, adopted by the United Nations Conference of Plenipotentiaries on the Establishment of an International Criminal Court, un Doc. A/ CONF.183/9, reprinted in 37 ilm (1998) at 999, online: icc [Rome Statute]. icc operates also under the Rules of Procedure and Evidence. Addendum to the Report of the Preparatory Commission for the International Criminal Court, PCNICC/2000/INF/3/Add.1 (adopted on 12 July 2000), online: icc [icc rpe]. 2 See among others A. Orie, “Accusatorial v. Inquisitorial Approach in International Criminal Proceedings” in A. Cassese, P. Gaeta & J.R.W.D. Jones, eds., The Rome Statute of the Internation­ al Criminal Court. A Commentary (2002) vol. 2, p. 1465, P.M. Wald, “The International Crimi- nal for the Former Yugoslavia Comes of Age: Some Observations on Day-To-Day ­Dilemmas of an International Court”, 5 Washington University Journal of Law & Policy (2001), p. 90. See also P.L. Robinson, “Ensuring Fair and Expeditious at the International Crimi- nal Tribunal for the Former Yugoslavia” 11 European Journal of (2000), p. 569 (arguing that legal system established by the icty “is neither common law accusatorial nor civil law inquisitorial, nor even amalgam of both; it is sui generis”). 3 For the interesting presentation of features of both systems see among others Similarly, Kai Ambos, “International , “adversarial”, “inquisitorial” or mixed?” 3 Inter­ national Review (2003), pp. 1–37 and P.C. Keen, “Tempered Adversality: The

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004323667_010

The Prosecutor of the International Criminal Court 177

One of the most recognizable element of criminal proceedings that differ- entiate common law system from the Continental law is the role that the pros- ecutor plays in investigation and during the trial. There are many features of the prosecutorial participation in criminal proceedings by which he/she can seem more inquisitorial or more adversarial, such as e.g. obligation to search both for incriminating and exculpatory evidence (typically inquisitorial feature), level of engagement in the investigation (very high in inquisitorial system and non-existing in adversarial) or form and level of involvement in presentation of evidence during the trial (high in and usually not that often visible in inquisitorial system). But, perhaps the most struggling is the approach towards the prosecutorial discretion.4 The most common presump- tion would be that in the common law system the prosecutor exercises signifi- cant discretion not limited in any way in prosecuting .5 At the same time Continental system is seen as subjected to the principle of (also called sometimes principle of mandatory prosecution)6 which forces to investigate and prosecute each and every that falls under the jurisdic- tion of national . But these presumptions are very simplified and not necessarily provide a complete explanation of this multidimensional problem. The amount of exceptions from main rules within discussed systems provides that the answer is much more complicated than simple dichotomy presented

Judicial Role and Trial Theory in the International Criminal ”, 17 Leiden Journal of International Law (2004), pp. 767–814. 4 L. Côté, “Independence and impartiality”, in L. Reydams, J. Wouters, C. Ryngaert (eds), Inter­ national Prosecutor (2012) p. 351 provided an aptly definition of the term ‘discretion’ stating that commonly it can be understood ‘as the power to make free decisions among possible alternative courses of action’. 5 It should be pointed out that the decision to initiate investigation is not in hands of the pros- ecutor in common law system. This issue will be discussed below. 6 It must be noted that “the principle of legality” have two distinct meanings. In a criminal procedure context that is used in this article it means the duty to investigate and prosecute each crimes that falls under the of the court. At the same time in a substantive criminal law context “the principle of legality” (in some countries called “a ”) is identified with the nullum crimen sine lege principle which can be defined with a use of Ar- ticle 7 of the European Convention on and Fundamental Freedoms as “no one shall be held guilty of any offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed”. See for example on this issue A. Ashworth, J. Horder, Principles of Criminal Law (7th ed., 2013), pp. 56–73 and A.P. Simester, J.R. Spencer, G.R. Sullivan et al., Simester and Sullivan’s Criminal Law. Theory and Doctrine (5th ed., 2013), pp. 21–25.