DAMODARAM SANJIVAYYA NATIONAL LAW

UNIVERSITY
VISAKHAPATNAM, A.P., INDIA

ROLE OF PROSECUTOR IN INTERNATIONAL CRIMINAL COURT

INTERNATIONAL CRIMINAL LAW

MR. ARVINDNATH TRIPATHI

SABBISETTI B N V GOWTHAM
2014099 & “X” SEM

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 ACKNOWLEDGEMENT

TITLE OF SUBJECT: - International Criminal law

NAME OF FACULTY: - Arvindnath Tripathi

I Sabbisetti B N V Gowtham hereby declare that this assignment: Role of prosecutor in

International Criminal Court. Submitted by me is original work. I have duly acknowledged
all the sources from which the ideas and extracts have been taken. The project is free from
any plagiarism issue.

PLACE: Visakhapatnam

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 ABSTRACT

The Rome Statute of the International Criminal Court (ICC) has established a system and
procedures for the Prosecutor of the International Criminal Court to be charged by acting
independently of the Office of the Prosecutor as an independent organ of the Court. To
further enforce the neutrality of the Office of the Prosecutor, the ICC treaty provides that
officers are not required to act on instructions from any external source. As such, the Office
of the Prosecutor operates independently of the judiciary and the Registry of the International
Criminal Court, and the Prosecutor alone has full authority over the administration and
administration of his office.

The Rules of Procedure and Evidence shall serve as a means of supporting the application of
the Rome Statute of the International Criminal Court and in all its cases. It supports and
interprets the provisions of the Statute and does not apply any retroactive amendments to
those Rules to the detriment of the person under investigation, prosecution or convicted
person. Those Rules shall be adopted as soon as they are adopted by the members of the
Assembly of States Parties and by a two-thirds majority. The Statute shall give the right to
any State Party, or any majority of the judges or the Prosecutor, to make any amendments or
proposals to those Rules.

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 TABLE OF CONTENTS

 Acknowledgement
 Abstract
 Objectives And Aims Of Study
 Significance And Benefits Of Study
 Scope Of The Study
 Review Of Literature
 Research Methodology
 Research Question
 Hypothesis
 Introduction
 Role of prosecutor
 The initial actions of the prosecutor in the investigation
 Recording and registration
 Procedural steps for the prosecutor of the ICC to request investigation
 The role of the prosecutor in hearing witnesses
 Role of the prosecutor in gathering evidence
 Obtaining warrants of arrest and detention
 Pre-trial proceedings of the prosecutor
 Preliminary proceedings before the international criminal court
 International prosecutors at trial - two perspectives
 Ends v. Means of prosecuting the case
 Prosecutor’s discretion v. Judicial control in trials
 Managerial fetters on prosecutors autonomy in ICC
 Standard to proceed and burden of proof
 Structural challenges to the preparation and presentation of case
 Conclusion
 Bibliography

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OBJECTIVES AND AIMS OF STUDY

The main objective and aim of this study is:-

 To study role of Prosecutor in International Criminal Court.

 To study various kinds of duties involved in International Criminal court.
 To understand the obligations to the duty of prosecutor
 To study various judgements related to role of prosecution
 To ascertain the stand of International organizations on prosecution under
International Criminal Law.

SIGNIFICANCE AND BENEFITS OF STUDY

The significance of this study is that we come to know the role of prosecutor in International
Criminal Court. Ascertain the stand of International organizations on prosecution under
International Criminal Law. Understand the obligations to the duty of prosecutor.

SCOPE OF THE STUDY

The scope of this study extends to studying the role of prosecutor in International Criminal
Court. The study would be limited to the extent of studying role of prosecutor in International
Criminal Court only.

RESEARCH QUESTION:
Is the role of Prosecutor in International Criminal Court similar to that of the role in national
courts?

HYPOTHESIS:
Role of prosecutor in International criminal court is different to the role played by the
prosecutor in national courts, as the prior one requires a lot more evidence. The judgements
cannot be appealed and hence are to be dealt more cautiously.

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INTRODUCTION:

The Rome Statute of the International Criminal Court (ICC) has established a system and
procedures for the Prosecutor of the International Criminal Court to be charged by acting
independently of the Office of the Prosecutor as an independent organ of the Court. To
further enforce the neutrality of the Office of the Prosecutor, the ICC treaty provides that
officers are not required to act on instructions from any external source. As such, the Office
of the Prosecutor operates independently of the judiciary and the Registry of the International
Criminal Court, and the Prosecutor alone has full authority over the administration and
administration of his office.

The Rules of Procedure and Evidence shall serve as a means of supporting the application of
the Rome Statute of the International Criminal Court and in all its cases. It supports and
interprets the provisions of the Statute and does not apply any retroactive amendments to
those Rules to the detriment of the person under investigation, prosecution or convicted
person. Those Rules shall be adopted as soon as they are adopted by the members of the
Assembly of States Parties and by a two-thirds majority. The Statute shall give the right to
any State Party, or any majority of the judges or the Prosecutor, to make any amendments or
proposals to those Rules.

In accordance with article 42 (1) and (2) of the Statute, the Prosecutor shall act independently
as an independent organ separate from the organs of the Court and shall receive referrals and
any documented information on crimes within the jurisdiction of the Court to examine them
for the purpose of investigation and prosecution before the Court. A member of the
Prosecution may seek any instructions from any external source and may not act under any of
these instructions.1 The Prosecutor shall have full power to organize and administer the
Office. The Assistant Prosecutor shall be assisted by one Deputy Prosecutor or more.

ROLE OF PROSECUTOR:

In all of the historical and modern international and hybrid criminal courts, the trial stage is a
culmination of a host of preceding activities of the Office of the Prosecutor (OTP) in

1
Article 42 (1) of the Rome Statute

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investigating a case and preparing it for prosecution. Subject to the nuances of each
procedural model, the Prosecutor’s pre-trial work encompasses:2

 The institution of investigation,

 The issuance and submission of indictment for judicial review,
 Requesting states and other entities to effect arrests and other coercive measures,
 Collection of evidence and interrogation of potential witnesses, and
 The taking of suspects or accused into custody.

In the intermediate stage of trial preparation, it is the task of the prosecution staff to:

 Review the available evidence in order to determine its pertinence,

 To disclose to the Defence both the items the Office intends to use at trial and those
potentially useful to the case of the accused,
 To deliver the summary evidence to the Trial Chamber seized with the case. Even
though this preliminary work is carried out in pre-trial interval of proceedings, it
essentially predetermines the scope and content of trial litigation and is crucial to
ensuring fair and expeditious trials.

Admittedly, every procedural step that occurs in the pre-trial stage is sine qua non for the
orderly conduct of trial and for the administration of international criminal justice in general.
One may nonetheless argue that, from the perspective of the Prosecutor’s role, the
significance of the trial stage overshadows that of any preceding activity, even if its intensity
and attendant level of drama may at times be matched by the earlier milestones. Although the
prosecutorial decisions to investigate or prosecute as well as the arrest and transfer of the
accused are all decisive moments in the progression of justice, trial nevertheless remains the
true climax of the entire enterprise of international prosecutions. It is the forum for
unearthing the truth about the events in question, attributing the individual criminal
responsibility and rendering the verdict and sentence. Over and above their sectarian
objectives, the prior prosecutorial activities merely aim to ensure that the evidence can be
presented on the terms that are both fair and efficient so that the adjudication can be held
resulting in conviction and sentence in case of the finding of guilt.
2
Cf. H.-J. Bevers, ‘Investigation, Trial and Appeal in the International Criminal Court Statute, (1998) 6(4)
European Journal of Crime, pg: 438

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In the absence of an insight into the trial competences of international Prosecutors, many
important aspects of their role and position in international criminal proceedings risk
remaining under-rationalized and the understanding of the very nature of international
criminal process can be impaired. Strikingly, this has been a largely ignored research subject
in international criminal law.3 The lack of attention to the trial functions of the Prosecutor is
in stark contrast with the wealth of literature on the issues of prosecutorial discretion in
selecting cases and accused and the scope of judicial supervision over such decisions. The
very term ‘discretion’ has come to be associated with this category of prosecutorial decisions.

The almost exclusive focus on the policy and deontological aspects of the Prosecutor’s pre-
trial mandate does poor justice to the broader dimensions of this key actor’s position in
international criminal law. It also fails to answer a plethora of questions posed by the
emerging practice before the newly emergent and inexperienced international and hybrid
courts. The trial proceedings the ICC to date have been plagued with uncertainties regarding
the proper role of participating victims during trial, in particular as it relates to the
competence of the Prosecutor to present the case. The Special Tribunal for Lebanon must
prepare itself for analogous challenges. It is now certain that the advent of victims as self-
standing participants in international criminal proceedings requires rethinking the
Prosecutor’s role.

THE INITIAL ACTIONS OF THE PROSECUTOR IN THE INVESTIGATION

The Prosecutor shall build upon the powers prescribed for him in the articles of the Statute to
proceed with the preliminary investigation himself after receiving information in which an
international crime is likely to occur, and in doing so he shall analyse this information and
investigate its validity and seriousness and shall have the right to obtain any additional
information from any party like The United Nations organs or any other reliable organs and
sources that it deems appropriate.
After concluding this information, he found the necessary seriousness and concluded that
there was a reasonable basis for initiating an investigation (Article (15/3) of the Statute.)
which would make a written request to the Pre-Trial Chamber requesting permission to
3
Melilli, ‘Prosecutorial Discretion in an Adversary System’, pg: 689

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conduct a preliminary investigation, attaching the information obtained, evidence and
evidence with the request for permission, to hear their statements in this regard in accordance
with the rules of procedure and evidence.

The interrogation is defined as the complainant's discussion about and charges against the
acts attributed to him Inquiries and questions about the charge and responses to it and its
response to the evidence referred to by the accusation and his request to reply others defined
interrogation as saying. The accused shall confront the defendant with the crime against him
and the evidence against him, and discuss it with a detailed discussion in order to refute this
evidence if he is not guilty of the charge, or he confesses to committing the crime if he
wishes to confess.4

The stage of questioning at the International Criminal Court is an important and serious stage
in the preliminary investigation. In view of the gravity of this stage, national legislation has
also attached great importance to this stage and has taken it with multiple guarantees to
preserve personal freedom without affecting it.

The text of Article 55 of the Statute of the Court to protect the rights of the person against
abuse of power and the most important of its safeguards are:

First: To inform the accused prior to the initiation of his interrogation that there is evidence
for believing that he has committed an offense within the jurisdiction of the Court. This right
is given to the accused after verifying his identity and from the acts attributed to him,
showing him reasons to believe that he has committed an offense within the jurisdiction of
the court. However, the investigator is not obliged to state the details of the facts attributed to
the accused, this right is given to the accused so that he or she may be prepared to defend
himself or his counsel if necessary.

Second: To remain silent, without this silence being a factor in the determination of guilt or
innocence. This is one of the rights that characterize the basic Law by giving it to the accused
when interrogated and has complete freedom to answer the questions that are directed to him

4
Abdullatif, Bara (2007), The International Criminal Court, Dar Al-Hamed Publishing and Distribution,
Amman.

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by the interrogator and his right to remain silent5(Article 55 (2) (b) of the Statute). If he is
silent, he does not answer him, and his silence is not proof against him.

Third: The right of a person to seek legal assistance if he chooses himself and works on it,
and if he does not exist must be provided to him without incurring any costs. The Statute
provided the accused with the right to seek legal assistance, whether legal advice or the use of
lawyers or other legal specialists, which was given to the accused to defend himself. Rule 22
of the Rules of Procedure and Evidence provides for the conditions to be met by counsel,
since he must have sufficient competence in international law, criminal law and criminal
procedure, and must be experienced, whether a judge, a prosecutor or a lawyer, To have at
least one of the languages spoken and spoken by the court, and to counsel other persons,
including law professors with the requisite expertise.

RECORDING AND REGISTRATION:

The origin of the criminal proceedings was the common practice of codification, that is, the
author or the person in charge of recording everything that happens in the sessions or
investigations, and the development of scientific means has become possible registration in
many of the legislation of the International Criminal Court, for a permanent reference can be
consulted when needed. In accordance with rules of Evidence, which requires that the person
questioned be informed in the language he understands that his or her interrogation will be
recorded by voice or video and has the right to object.

The person's right to be questioned in the presence of a lawyer is recorded in a lawyer's

presence, and it can be recorded by video or audio. In the event of a defect, and the recording
is suspended during interrogation, the time of suspension is recorded before The interviewer
is given an opportunity to add something or clarify something, after which the contents of the
tape are reproduced as soon as possible after the interrogation is completed, and a copy of the
interviewee is given with a copy from tape recorder, and after that, a seal shall be placed on
the original tape in the presence of the person being questioned and his lawyer if present, and
shall be signed by the Prosecutor, the person being questioned and his counsel if present.

5
Article 55 (2) (b) of the Rome statute

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The Statute provides that the Prosecutor had the authority to question the accused at the
preliminary investigation stage, but did not address the manner and manner in which the
Prosecutor interrogated the accused, but through the procedural rules and rules which the
accused was required to attend during the interrogation phase.
The International Criminal Court has restricted the Prosecutor to the request for leave and has
the right to initiate investigations only after authorization by the Pre-Trial Chamber. If the
Pre-Trial Chamber refuses to authorize an initial investigation, because it is not convinced of
the seriousness of the information submitted to it by the Prosecutor, The refusal of the
Prosecutor to submit a subsequent application to the Chamber and is based on new facts and
evidence for the purpose of opening an investigation on article 15 (5) of the Statute.

PROCEDURAL STEPS FOR THE PROSECUTOR OF THE ICC TO REQUEST

INVESTIGATION:

The Prosecutor shall make a written submission to the Pre-Trial Chamber detailing the basis
for the request for authorization of the investigation and shall inform the Pre-Trial Chamber
of the information provided by the State requesting the referral of the case to the International
Criminal Court and those requested by the Prosecutor from that State as additional
information, which was based on the request for permission to proceed with the investigation

Rule 55 of the Rules of Procedure and Evidence sets forth the procedural steps for deciding
and passing a judgment on the request for authorization by the Pre-Trial Chamber and the
submission of its judgment on that matter and the basis on which it was based on the
petitioning Prosecutor and requesting the State Party without the above, but stipulated that
this should be done as soon as possible.6

THE ROLE OF THE PROSECUTOR IN HEARING WITNESSES:

The certificate is one of the most important evidence in criminal law and comes immediately
after recognition. It is an accepted means of evidence before the International Criminal Court.

6
Del Ponte, Carla(2006), ‘Investigation and Prosecution of Large-scale Crimes at the International Level-The
Experience of the ICTY’, Journal of International Criminal Justice, 4 , 539-558.

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The Statute does not provide for a mechanism to compel witnesses to appear before the court.
Therefore, in the International Criminal Court the right to be heard by the Pre-Trial Chamber
and also by the Prosecutor is granted under article 15 (2) of the Regulations. the Prosecutor
shall analyse the seriousness of the information received and may for this purpose seek
additional information from States, United Nations organs or intergovernmental organizations
or non-governmental organizations, or any other reliable sources that it deems appropriate,
and may receive written or oral testimony at the seat of the Court.

The Statute allows witnesses to be heard and interrogated at the same time. During the
hearing of the Pre-Trial Chamber, witnesses are entitled to testify by means of oral or audio-
visual technology provided that such a technology allows the witness to be heard at the time
of testimony by the Prosecutor, the defense or the Chamber itself, which is intended to
question the witness in his or her information.

ROLE OF THE PROSECUTOR IN GATHERING EVIDENCE:

The Statute of the International Criminal Court (ICC) adopts the basic rule of criminal trials
under the presumption of innocence until a firm evidence of criminalization or conviction is
established. The burden of proof lies with the Prosecutor. The Court does not seek to gather
evidence but rather weighs its value and scope, and that suspicion is in the interest of the
wrongdoers. The role of the prosecutor in this court is different from the previous
international criminal tribunals when collecting evidence.

The former courts followed the common law system where the prosecutor's task is to collect
evidence only without evidence of innocence, unlike the International Criminal Court
evidence of innocence and accusation as in the civil law system. Therefore, the Prosecutor of
the Court shall not be a litigant in the proceedings. On the contrary, when evidence appears
that reveals or acquires or can be used by the accused, it shall be disclosed in accordance with
article 67 (2). The Prosecutor shall disclose, as soon as possible, the evidence in his or her
possession which is believed to show or tend to show the innocence of the accused or to
mitigate his guilt or that may affect the credibility of the prosecution evidence.7

7
William A. Schabas(2007), An Introduction to the International Criminal Court, Cambridge University Press.

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The Rome Statute is thus far more advanced in comparison to the former international
criminal tribunals, which is in favour, since the purpose of the Court is to administer justice
internationally, and the unjust conviction of a defendant undermines that end and casts doubt
on the credibility of the Court.

THE ROLE OF THE PROSECUTOR OF THE INTERNATIONAL CRIMINAL

COURT IN OBTAINING WARRANTS OF ARREST AND DETENTION:

The powers of the Attorney-General come in the application for arrest warrants. Article 58
(1) of the Statute provides that the pre-trial Chamber shall, at the time of the initiation of the
investigation and at the request of the Prosecutor, issue an arrest warrant if, upon examination
of the request and evidence or other information provided by the prosecutor, There are
reasonable grounds to believe that a person has committed a crime within the jurisdiction of
the Court, or that the arrest of the person appears necessary.

To ensure that he is present before the Court, or to ensure that he does not obstruct or
endanger the investigation or the proceedings of the Court or where applicable, to prevent a
person from continuing to commit that crime or to prevent the commission of a related
offense within the jurisdiction of the Court and the same circumstances arise.

The Pre-Trial Chamber shall issue an order or decision to arrest the accused, at the request of
the Prosecutor, and upon examination of the request, there are reasonable grounds that the
person has committed an offense within the jurisdiction of the Court, his presence before the
court after proceeding with the investigation if he deems it necessary to prevent the
obstruction of the investigation or to prevent the accused from continuing his crimes. The
importance of the arrest warrant is that the accused must be brought before the court. This
may require substantial cooperation between the court and the reserving State.

PRE-TRIAL PROCEEDINGS OF THE PROSECUTOR:

The Prosecutor plays an important role before the Trial Chamber in the pre-trial phase. This
was elaborated in detail in the Rules of Procedure and Evidence. The most important thing

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was the Prosecutor's power to request the Trial Chamber to defer trial in accordance with rule
(132.1) of the Rules of Procedure and Evidence.

The Prosecutor may submit a written request to the Trial Chamber before the commencement
of the trial to decide on any matter relating to the conduct of the proceedings. At the
commencement of the trial, the Chamber shall ask the Prosecutor or the defense if they have
any objections or observations regarding the conduct of the proceedings taken prior to the
trial The confirmation of the charges shall not be admissible and no objections or
observations may be raised or presented again on a later occasion during the proceedings
without the permission of the Chamber conducting the proceedings. The Trial Chamber may,
at the request of the Prosecutor, decide on matters that may arise during the trial in
accordance with of rule 134 of the Rules of Procedure and Evidence.

PRELIMINARY PROCEEDINGS BEFORE THE INTERNATIONAL CRIMINAL

COURT:

The Prosecutor has a role to play in the trial stage, in accordance with the Statute of the
International Criminal Court. He has the authority to prosecute, he reads the charges
document, is entitled to ask questions at the trial, and makes statements about the evidence
against the accused and is entitled to submit his statement in accordance with article 42(1) of
the Statute. Pre-trial proceedings may not be absent at the time of the confirmation of the
charges before the trial, and the content of such proceedings shall be evidence of the accused
through the pre-trial chamber.

THE STAGE OF APPROVING CHARGES:

The Pre-Trial Chamber shall, as provided for in article 61 of the Statute, hold a hearing to
confirm the charges on which the Prosecutor intends to seek trial. The hearing shall be held in
the presence of the Prosecutor, the accused and his counsel. However, the Pre-Trial Chamber
may, at the request of the Prosecutor or on its own initiative, hold a hearing in the absence of
the person charged, in order to confirm the charges on which the Prosecutor intends to
request the trial.

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In the final stage, the Pre-Trial Chamber shall notify the Prosecutor, the accused and his
counsel, of their decision to confirm the charges. They shall be referred to the Trial Chamber
and then to the Presidency and shall be accompanied by the minutes of the Pre- Trial
Chamber. When the Presidency establishes a Trial Chamber and transmits the case to it, of
the trial chamber. The Presidency may also refer the case to another Trial Chamber
previously established.

INTERNATIONAL PROSECUTORS AT TRIAL - TWO PERSPECTIVES:

The proposed analytical framework deconstructs the role of the international Prosecutors at
trial along two separate dimensions. The first perspective looks at the substantive nature of
the trial competences of the Prosecutor. It is meant to situate him on a sliding scale between,
on the one hand, ‘international civil servant’ concerned with impartial and neutral
administration of justice and acting in the public interest and, on the other hand, partisan
actor driven by zeal to prevail in a trial combat and seeking the full-extent conviction and
maximum sentence for the accused person. This theoretical outlook highlights the different
sides of the Prosecutor’s mandate related to his dialectic hypostases of ‘minister of justice’
and ‘partisan advocate’. It is argued that the actual prosecutorial practice is, or at least must
be, a balanced unity of these two aspects and that these two extremes are to be taken as
abstract heuristic models for describing the trial role of the Prosecutor.8

The international Prosecutor’s role at trial is commonly seen as twofold. On the one hand, in
the judicial realm of trial the Prosecutor’s function as a partisan advocate comes to the fore
most noticeably. The involvement of the Trial Chamber which is in charge of the overall
fairness of the proceedings has the effect of alleviating the burden on the Prosecutor to
safeguard the public interest and gives his position a distinct partisan touch. Firstly, at trial
the Prosecution essentially performs as the opponent of the Defence in an evidentiary contest
unfolding before the Judges in which the Prosecutor tries to prove the charges ‘beyond a

8
Hall, C. (2004). The Powers and Role of the Prosecutor of the International Criminal Court in the Global Fight
against Impunity. Leiden Journal of International Law.

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reasonable doubt by adducing incriminating evidence. This is partly true, although to a lesser
degree.

Where the Prosecution is responsible for investigation, it is placed under the obligation to
disclose exculpatory or mitigating evidence to the Defence and, in the case of the ICC or the
SPSC, even actively to search for such evidence. However, the presentation of the
exonerating evidence whoever collects it remains in all international and hybrid jurisdictions
a regular function of the Defence. Secondly, as a party to the criminal proceedings, the
Prosecutor is entitled to be treated equitably by the Court. Although due process safeguards
formally accrue to the status of the suspect and accused, the application of the right to a fair
trial, including the principle of equality of arms, has been recognized by the Tribunals to
extend also to the Prosecutor.

On the other hand, throughout the trial the Prosecutor continues to exercise functions related
not so much to his partisan role but to his position of authority as an officer of the court and a
‘minister of justice’. The Prosecutor is entangled in the fine net of legal and ethical
obligations owed to his interlocutors: judges, accused, victims and witnesses and
information-providers. In this capacity, the Prosecution bears its share of responsibility for
the fair and efficient administration of criminal justice and for truth-finding as the ultimate
goal of trial procedure. It is placed under an on-going duty to protect the safety and physical
and psychological well-being of victims and witnesses and to honour the conditions of
confidentiality agreed upon with the providers of evidence. Most importantly, the Prosecutor
must comply with the principles of fair play in relation to the accused, which imposes on him
duties that go beyond, and at times conflict with, the partisan interest of securing a
conviction.9

However, the qualification of the Prosecutor’s competences as going either to the ‘partisan
advocate’ ideal or its ‘minister of justice’ opposite is far from straightforward; it should rather
be a matter of degree. These labels denote ideal and abstract models which highlight different
aspects of the Prosecutor’s role rather than accurately and adequately describe it. One
example is the Prosecutor’s practice of obtaining guilty pleas through plea negotiations,
which is an archetypical and clear expression of the party’s autonomy to decide whether and
on what terms the proceedings can terminate. It is less obvious that besides ensuring the
9
Id 6

16
minimum acceptable scope of criminal responsibility, the practice defies the partisan zeal to
pursue a fullest possible conviction on the charges initially pled on the account of sometimes
rather ‘ministerial’ considerations. Plea negotiation eventually promotes the broader goals of
administering justice in the most efficient way by ensuring that the spared resources can be
used to pursue other investigations and prosecutions, unearth the earlier unknown incidents of
criminality, and to obtain access to the earlier unavailable evidence, thereby enabling the
Prosecutor to address impunity on a broader scale. This demonstrates the appropriateness of
using the terminology of ‘minister of justice’ and ‘partisan advocate’ not for the purpose of
classifying the international Prosecutors’ powers but for underlining the different sides of
their mandate.

ENDS V. MEANS OF PROSECUTING THE CASE:

The dialectic tensions between the two aspects of the Prosecutor’s role are not unique to
international criminal law. In this respect, a parallel can be drawn with some national
jurisdictions, which have likewise sought to reconcile the centrifugal tendencies in the
Prosecutor’s trial role. The national systems deal with this dichotomy variously. From a
comparative angle, this is a consequence of differences in the underlying philosophy of truth-
finding and procedural functions assigned to the trial participants.

The adherence to the ideal of an impartial and judge-like prosecutor poses less of a problem
in the jurisdictions in which criminal process adopts an ‘inquisitorial’ form. On a conceptual
level, the said tension is almost unnoticed. In Germany, the prosecution is a hierarchical yet
decentralized structure operating under the authority of the ministers of justice of the federal
state, the status of the prosecutors is distinct from the judges and sui generis. Although the
remnants of the subordination of the prosecutors’ offices to the executive raised issues of
their independence from politics in the past, nowadays they are largely self-governing
structures. Generally, the continental prosecutors are committed to impartiality as a method
and truth as a goal in criminal process. Where the prosecutors are charged with conducting
investigations, they are duty-bound to do so objectively by searching for both inculpatory and
exculpatory evidence. Moreover, their quasi-judicial mandate demands that they bring to the
attention of a judge any admissible evidence that has been overlooked in the inquiry and even
to appeal on behalf of a convict if the sentence appears too severe.

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In the common law countries, the conflict between the systemic role of ‘minister of justice’
and the operational mode of a ‘prosecuting attorney’ inherent in the status of the prosecutors
is far more conspicuous. The expectation towards the prosecutors to act vigorously yet
impartially in an adversarial context has been compared to ‘asking a professional chess player
to put his heart and soul into making efficacious moves for one side, consistent with all rules
of the game, while at the same time urging that he not be concerned with its outcome’.
Indeed, the adversarial system operates on the assumption that the attorneys on both sides are
professional and competent advocates capable of identifying and bringing out the evidence
favourable to their respective causes in the best possible fashion. Therefore, the prosecution’s
obligations of fairness towards the accused commonly do not reach beyond disclosure of
evidence to avoid the ‘trial by ambush’.

The uneasy balance between the prosecutorial mandate to act in the interests of justice and
the discharge of functions of zealous advocate for the prosecution is established
predominantly by providing for ethical standards the prosecution counsel must adhere to. It
bears noting that in the adversarial model, the prosecutors are especially inclined to act as
partisan agents, which is not always helpful for establishing the truth and delivering justice.
In most common law jurisdictions, the prosecution attorneys are members of public
prosecution services which are institutionally divorced from the professional associations of
judges. However, the deontological standards governing the prosecutors’ conduct as well as
the case law in those countries as a rule emphasize the special quasi-judicial nature of their
position.

Therefore, the role of the Prosecutor as it emerges from the common law can safely be
described as a ‘fair minister of justice’ of quasi-judicial kind. It is an unequivocal normative
stand, which garnered wide and firm support, that the Prosecutions must not act solely or
principally to ‘win’ the case by securing a conviction. However, in a certain sense, this serves
to ‘mask a reality’ in which prosecutors are principally there to argue for conviction. In the
preparation and presentation of evidence, his functions in the fair administration of justice are
essentially condensed in the duty to disclose evidence to the accused. The proper discharge of
these obligations would be sufficient for any individual prosecutor to comply with his
functions as a minister of justice. However, excessive action for the defendant’s cause on the

18
part of the prosecutor may endanger the chances for the prosecution case to prevail and
would undermine the advocate side of the prosecutor’s mandate.

Finally, looking beyond the common law and civil law divide, the guiding standards on the
proper role of public prosecutors that are due to be applied across the board can be found in a
recommendation adopted in the framework of the Council of Europe. The Recommendation
(2000)19 establishes, in particular, that in the performance of their duties public prosecutors
should carry out their functions fairly, impartially and objectively, make themselves aware of
all relevant circumstances irrespective of whether they are to the suspect’s advantage or
disadvantage, and should not initiate or continue prosecution when an impartial investigation
shows the charge to be unfounded. Specifically during trial, the prosecutors must be objective
and fair, which entails a duty to provide the court with all relevant facts and legal arguments
necessary for the fair administration of justice. These provisions embody a stricter approach
towards the prosecutor’s ‘ministerial role’ that resembles the status in the continental
systems.10

PROSECUTOR’S DISCRETION V. JUDICIAL CONTROL IN TRIALS:

Prosecutorial discretion denotes the autonomy of the prosecutor as a decision-maker with

respect to various issues in the criminal process such as what crimes and whom to charge,
what evidence to present and what sentence to recommend, including diversionary and other
similar decisions. In international criminal law, the preliminary investigation and pre-trial
stages are characterized by a wide discretion of the Prosecutor in, and his primary
responsibility for, selecting cases for investigation and individuals for prosecution. This
applies to the Nuremberg trials, which envisaged no judicial but political oversight over
prosecutorial decisions in selecting the accused.

The situation is not different before the contemporary international and hybrid courts. The
Co-Prosecutors hold the discretion whether to open the judicial investigation, but the Co-
Investigating Judges are the ones formally to charge individuals named in the Co-
Prosecutors’ Introductory Submission or other persons and to investigate. Similarly, it is
normally incumbent on an international Prosecutor to do everything within his competence to
10
Jackson, ‘The Ethical Implications of the Enhanced Role of the Public Prosecutors’, Pg: 43.

19
secure the appearance of the accused, to obtain sufficient evidentiary basis for the conviction,
subject to the requirement that those measures neither violate human rights nor affect the
integrity of trial proceedings under the threat of the exclusion of evidence or stay of
proceedings. In the court that embodies a judicial investigation model, the respective
discretion and responsibility lies with the investigating judges.

The trial phase illustrates a completely different set-up and power balance. As noted, in fact,
this tectonic shift occurs already in the intermediary stage prior to trial. This is the area in
which international Prosecutors have increasingly had to concede their autonomy in
determining the scope and substance of the case and to share their powers with the bench.
The managerial involvement of the bench at the pre-trial stage established itself as the
preferred solution to the persisting problem of inefficiency.

At the trial phase, the procedural role of the Prosecutor culminates in the task of presenting
the case against the accused and litigating factual and legal issues relevant to the
determination of guilt and the sentence. In contrast with much of the pre-trial process, the
word ‘culmination’ is a misnomer in this context. In fact, the trial role of the Prosecutor
involves an even greater degree of downgrade in relation to judicial prerogatives than at the
intermediate phase, especially as compared to investigation. Full control over the conduct of
proceedings is transferred to the judiciary, and broad prosecutorial discretion gives way to
judicial dominion. Once the Prosecutor divests her dominant position and the Judges take
charge of the ‘public interests’ at stake in the proceedings, the Prosecutor’s role acquires a
partisan flavour.11

MANAGERIAL FETTERS ON PROSECUTORS AUTONOMY IN ICC:

The commencement of trial at the ICC is preceded by an intermediate stage following the
conferral of the competence to try the case, when and if the charges have been confirmed, to
the relevant Trial Chamber. Since the conclusion of the pre-trial stage does not render the
case automatically trial-ready, the Trial Chamber bears the burden of making it such during
11
Id 9

20
the said phase. In order to lay the ground for a fair and expeditious trial, it will work in
coordination with the parties to craft the trial procedures, to facilitate inter partes disclosure,
and to remove any other obstacles to the commencement of the trial. Similarly to the
constructively ambiguous regulation of trial procedure in the Statute and Rules beyond most
general tenets, the pre-trial preparation is subject to fairly limited guidance. The need for the
Trial Chamber to devise and adopt trial modalities on an ad hoc basis foreshadows its broad
discretion as far as the preparation for trial is concerned and is matched by open-ended
intermediary procedures.

In the present context, it is apposite to consider the issues of whether the ICC pre-trial regime
endows the Trial Chamber with managerial powers vis-à-vis to the Prosecution to be
exercised on the eve of trial, similarly to the ad hoc tribunals’ context, and whether that could
have bearing upon the Prosecutor’s autonomy to determine the scope of trial litigation and
evidence. The option of managerial judging is not specifically envisaged by the Statute and
Rules but surfaces in the ICC Regulations of the Court because many of the powers the
Chamber is entrusted with for the purpose of status conferences can be invoked to ‘manage’
the presentation of evidence. Rule 131 (2) provides that the Trial Chamber may confer with
the parties by holding further status conference, with a view to ensuring fair and expeditious
conduct of the proceedings, to be convened after the first and mandatory status conference
held in order to set the date for trial, promptly after the Chamber is constituted.12

The powers contained in Regulation 54 detail the authority of the Trial Chamber under
Article 64 (3) (a) to confer with the parties and adopt such procedures as necessary to
facilitate the fair and expeditious conduct of the proceedings. Regulation 54 sets out a non-
exhaustive list of issues on which the Trial Chamber may issue an order at further status
conferences in the interests of justice. Many of the issues explicitly indicated have the
rationale to enable the Chamber to proactively moderate the length and volume of the case.
First, some items on the list purport to enhance the Trial Chamber’s knowledge of the
projected scope and content of the case to be tried, which is a pre-requisite for any
managerial fetters to be imposed on the Prosecution or the Defence. This includes the power
to order the parties to submit:

(a) the length and content of legal arguments and the opening and closing statements;
12
Id 13

21
 (b) a summary of the evidence the participants intend to rely on;
(c) he length of the evidence to be relied on;
(d) the length of questioning of the witnesses;
(e) the number and identity of the witnesses to be called;
(f) the production and disclosure of the statements of the witnesses on which the
participants propose to rely;
(g) the number of documents as referred to in Article 69 (2) or exhibits to be introduced
together with their length and size;
(h) The issues the participants propose to rise during the trial. This set of the ICC Trial
Chamber’s powers to order the submission of materials, the volume of which goes
beyond the record of pre-trial proceedings and may include evidence disclosed inter
partes and additional information about the case.13

Secondly, some of the already listed as well as remaining items in the Regulation 54 list can
be interpreted as endowing the Trial Chamber with the power to not merely order the
respective filings but also to decide on the terms of case presentation proposed therein. 14
Indeed, it would be pointless for the Chamber to receive extensive filings for its very sake.
Instead, the Trial Chamber may and, arguably, must use its familiarity with the materials
delivered to it by the parties in order to manage the case presentation. Regulation 54 is thus a
managerial device by which the Chamber will streamline and shorten the trial proceedings,
by analogy with pre-trial and pre-defence conferences. Furthermore, the rationale for the
Chamber to gain detailed knowledge of the case may well go beyond ensuring better case
management. The distinction between the latter and substantive truth-finding might prove
porous, given that the ‘managerial’ measures will necessarily be informed by the preliminary
views of the judges on the scope and object of the factual enquiry. At any rate, the Trial
Chamber’s actions upon the information obtained from the parties would steer the fact-
finding enquiry at trial and have far-reaching implications for the actual scope of the
Prosecutor’s autonomy at trial.

STANDARD TO PROCEED AND BURDEN OF PROOF:

13
Hunt, ‘Prima Facie Case’, supra note 314, at 138-9.
14
Id 12

22
Proceeding on trial with the case that the prosecutor knows in advance to be ‘unwinnable’ or
casting a little chance of conviction would not be in the public interest and amount to an
imprudent waste of resources and the abuse of process. This is particularly true for
prosecutions before international and hybrid criminal tribunals, which are all running on
limited budgets. Given the notorious but inevitable selectivity of international prosecutions,
any unjustified and futureless expenditure precludes the delivery of justice in other,
potentially meritorious, cases and is detrimental to overall efficiency and credibility of the
system.15

The evidentiary standards associated with the prosecutor’s decisions in the run-up to and
during the trial are set variously in the national context. In England and Wales, the decision to
prosecute hinges upon the dual test that requires the Crown Prosecution Service to review
evidence for sufficiency and to establish the public interest in the prosecution. The former
prong entails the duty to objectively assess whether there is ‘a realistic prospect of
conviction’. This is an objective test whether the court (magistrate) is more likely to convict
than acquit. In the United States, the evidentiary standard applied at the preliminary hearings
and before the grand jury, depending on the state, is a lower one of a ‘probable cause’, which
is in the majority of cases easily met by the government. Many of the civil law jurisdictions
adopt the standard of evidentiary sufficiency.

In international criminal law, no specific standard to orient the Prosecutor is formulated ‘in
the books’ or in publicly available prosecution policies. It is unclear to what extent inferences
that could be drawn from public statements and pleadings of the prosecution staff accurately
reflect the normative status. At the same time, the benefits of having a clearly defined
evidentiary threshold in order for the Prosecutor to move on to trial can hardly be questioned.
This raises the question of whether it is the same standard as the one that informs the
Prosecution’s own decisions both to proceed to trial and to remain committed to the initial
position in the course of trial.16

STRUCTURAL CHALLENGES TO THE PREPARATION AND PRESENTATION

OF CASE:

15
Articles 64 (6) (d) and 69 (3) ICC Statute
16
Id 7

23
The prosecutorial task of preparing the case for trial and conducting the prosecution may be
compounded by a number of formidable challenges these actors face, in various forms, before
international and hybrid jurisdictions. One of them is the corollary of the fragmentation of the
process through which the prosecution case or evidence is constructed, over separate
functions of investigation and prosecution. In comparative terms, the challenge is not
uniquely international and may as well be traced back in the national contexts whereby
prosecuting counsel exercise no or limited control of conducting investigations by the police.
The limited ability to influence and supervise the process of evidence-gathering could prevent
the prosecutors from developing strong indictments or cogent litigation strategies and
acquiring the intimate knowledge and understanding of evidence requisite for presenting it
effectively at trial.

The same applies to international criminal prosecutions and the acquired experience in this
domain can teach an important lesson. Matching prosecution to the evidence collected is not
a viable approach that can bring the prosecution far. Giving investigators an overly broad
leeway in deciding what leads to take and how to go about collecting evidence renders a
prosecutor too dependent on the results of investigation and creates a risk that the prosecutor
would be unable to build a credible case at trial. In international criminal practice, an
important part of the problem is the quality of investigations and professionalism of
investigators. Although an extensive discussion is beyond the present inquiry, the matter is
relevant insofar as the said problem is capable of seriously complicating the trial preparation
work of the Prosecutor.

Even though it would be ideal to ensure that cases are ‘trial-ready’ already at the
confirmation stage, it has proved largely unfeasible in light of the complex and extensive
nature of international criminal investigations. However, to a significant degree, it was the
question of improving the quality of preliminary investigations, to be attained through early
involvement of prosecuting attorneys and their close supervision of investigations. The need
to continue investigations far into intermediate and sometimes even trial stage will be a
serious burden for the OTP itself and draw its resources from the trial proper. Besides that, it
is could have negative implications for the fairness of the proceedings. 17 This includes

17
Article 145 IMT Charter. ‘Prosecutorial Discretion v. Judicial Activism at the International Criminal Court’,
pg: 732.

24
unavoidable delays in trial as result of the prosecution duty to disclose new evidence to the
Defence. Moreover, the continued investigations and discoveries by the prosecution will
require the defence to constantly and in an on-the-fly mode amend its case to fit the ‘moving
target’ of accusation, which includes having to conduct additional inquiry in the highly
strenuous circumstances of intermediary phase or on-going trial.

Although the respective defence motions were all dismissed, one cannot easily rid of an
impression that, taken in its entirety, the prosecution case indeed was in a state of flux and
constantly incrementing as the trial unfolded. The Defence had not been properly put on
notice as regard the new potential bases for conviction, but had rather been receiving this
information during the trial in a form of evidence held by the Chamber to fall within the
factual substratum of the charges. Arguably, the prosecution tactics came too close to a ‘trial
by ambush’ which is impossible to effectively defend against even for qualified and
experienced counsel. If the Prosecutor as the ‘minister of justice’ is to concern himself with
the fair trial rights of the accused, this practice certainly does not sit comfortably with the
spirit of that mandate.

The challenge of inadequate investigations, which has effects on the construction of the
prosecution case, is yet to be matched by an adequate solution. Clearly, one part of such
solution would be to encourage the counsel responsible for drafting the indictment and
prosecuting at trial to exercise active supervision over investigations and witness interviews
from early on and to enhance the accountability of investigators toward the prosecuting staff.
The usual steps taken by the prosecutors to improve the results of substandard investigations
ex post facto and in a piecemeal fashion basically by way of proofing come in company with
costs of fairness towards the accused. But exactly therein looms the risk for the Prosecutor to
compromise his ‘quasi-judicial’ stature in pursuit of prosecution or to be seen as doing so,
which is not much different in the end.

CONCLUSION:

This project tackles key questions of the international Prosecutors’ role and position at the
trial stage from the procedural perspective, as it tries to address the imbalance emerging from
the predominant focus on the issues of prosecutorial discretion with respect to pre-trial

25
decisions. One is bound to recognize that the trial stage, including the preparation phase and
the trial, is the arena in which international Prosecutors routinely exercise discretion on
diverse matters that are no less useful for gaining an understanding of this actor in the context
of the international criminal justice system. Many of those matters raise complex questions of
fairness, professional ethics, and expedience. Thus, from the perspective of practical
relevance, the issues of the nature and scope of prosecutorial discretion during the trial
deserve more attention than they have received thus far.

The overview of the role and powers of the Prosecutor at the key phases of trial, from
opening statements to sentencing reveals more differences than similarities between various
tribunals. This may not be without consequences for the uniformity of prosecutorial trial
functions. However, the diverse legal frameworks and trial practice point to the procedural
role of the Prosecutor that goes beyond mere advocacy. This player is required to serve
justice in an impartial way, even where his position in the trial system impels him to act as an
engine behind the trial through the presenting incriminating evidence, the discharge of the
burden of proof, and through pleading for an appropriate sentence.

In present international criminal practice, Prosecutors are increasingly engaged in interactions

within a network of actors as diverse as judges, investigators, victims and witnesses, groups
and representatives of target communities, national authorities, and international and
domestic politicians. This multi-faceted involvement raises questions of how the Prosecutors
are to reconcile efficiency with independence and impartiality with professional vigour. The
broader context of the Prosecutors’ operations necessarily informs their trial role and
modalities. A closer inquisitive look at how the core function of prosecuting an international
criminal case is exercised proves rewarding. By shedding new light on the prevailing general
conceptions of the role and position of Prosecutors, it can lead to a reversal of some of the
most widespread assumptions.

BIBLIOGRAPHY:

International Law:

 Rome Statute
 International Military Tribunal Charter

26
Publications:

 H.J. Bevers, ‘Investigation, Trial and Appeal in the International Criminal Court
Statute, (1998) 6(4); European Journal of Crime
 Melilli, ‘Prosecutorial Discretion in an Adversary System’
 Abdullatif, Bara (2007), The International Criminal Court, Dar Al-Hamed Publishing
and Distribution
 Del Ponte, Carla (2006), ‘Investigation and Prosecution of Large-scale Crimes at the
International Level-The Experience of the ICTY’, Journal of International Criminal
Justice
 William A. Schabas (2007), An Introduction to the International Criminal Court,
Cambridge University Press
 Hall, C. (2004). The Powers and Role of the Prosecutor of the International Criminal
Court in the Global Fight against Impunity. Leiden Journal of International Law
 Jackson, ‘The Ethical Implications of the Enhanced Role of the Public Prosecutors’
 Hunt, ‘Prima Facie Case’

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