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The Whitehead Journal of Diplomacy and International Relations Comment ON SOME ASPECTS OF PROSECUTORIAL DISCRETION IN THE INTERNATIONAL CRIMINAL COURT by John L. Washburn T he insightful and stimulating article by Professor Jens David Ohlin in the Winter/Spring 2007 issue of the Whitehead Journal is unfortunately marred by a serious misreading of the Rome Statute of the International Criminal Court (ICC). 1 In his argument, Ohlin writes that “…the ICC is required to take cases referred to the prosecutor by the Security Council…” (emphasis supplied). 2 The author then bases an important part of his argument upon this assertion. In its support, he cites Article 13 of the Statute. 3 However, Article 13 lists several situations where “the Court may exercise its jurisdiction” (emphasis supplied), including a Security Council referral (subparagraph (b)). Article 53 of the Statute designates the prosecutor as the main actor in the Court’s decision on whether or not it will act on a Security Council referral. In Article 53, sections 1 and 2 establish the discretion of the prosecutor to decide whether or not he will proceed with a case in various circumstances. Section 2 provides that “if the prosecutor concludes that there is not sufficient basis for a prosecution…” he shall inform “the Security Council in a case under Article 13, subparagraph (b) of his or her conclusion and the reasons for the conclusion.” Moreover, section 3 (a) provides that “at the request of the Security Council,” concerning a referral under Article 13(b), “the Pre-Trial Chamber may review a decision of the prosecutor not to proceed and may request the prosecutor to reconsider that decision.” Finally, section 3(b) provides that, if the prosecutor decides not to proceed on a Security Council referral “in the interests of justice,” the Pre-Trial Chamber may on its own iniative review that decision, which “shall be effective only if confirmed by the Pre-Trial Chamber.” In the case of Darfur, on June 1, 2007, the prosecutor informed the Pre-Trial Chamber by letter that “following receipt of the [Security Council] referral…” his office had carried out an analysis and review “…to determine whether the criteria to initiate an investigation are satisfied.” 4 The letter advised the Pre-Trial Chamber that he had determined that there was a reasonable basis for an investigation. It is quite clear that the prosecutor would not accept Professor Ohlin’s claim that “[t]he referral preempted [his] discretion in the matter and directed him to conduct an investigation and commence prosecutions for any wrongdoing.” 5 I leave it to the readers to draw their own conclusions about the effect of Professor Ohlin’s misreading of the Rome Statute on his argument in the rest of the article. My own interest here is not with that argument, but rather in ensuring an 145
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The Whitehead Journal of Diplomacy and International Relations accurate understanding of the Court in the United States, and challenging an
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This note was uploaded on 02/02/2012 for the course HIST 101 taught by Professor Wormer during the Fall '08 term at Boise State.

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