chapter 9 The Prosecutor of the International Criminal Court – Inquistorial or Adversarial? Discretion to Initiate Investigation and to Prosecute in the Law 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 common law 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 trial is based on the adversarial model where both parties present evidence before an impartial judge, while in civil law the inquisitorial style is recognized in which the court takes an active role in seeking the truth.3
1 Rome Statute 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
© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004323667_010
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 adversarial system 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 crimes.5 At the same time Continental system is seen as subjected to the principle of legality (also called sometimes principle of mandatory prosecution)6 which forces prosecutors to investigate and prosecute each and every crime that falls under the jurisdic- tion of national courts. 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 Tribunals”, 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 jurisdiction of the court. At the same time in a substantive criminal law context “the principle of legality” (in some countries called “a rule of law”) 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 Human Rights 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.