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Journal of International Criminal Justice 2004 2(1):71-95; doi:10.1093/jicj/2.1.71
© 2004 by Oxford University Press
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Prosecutorial Discretion within the International Criminal Court

Matthew R. Brubacher1

1 London School of Economics

The ability of the Prosecutor to exercise discretion in initiating criminal investigations and prosecutions has been an integral part of international criminal courts. In the International Criminal Court (ICC), however, oversight by the judiciary and the Security Council, as well as the need to maintain active state cooperation, challenge the ability of the Prosecutor to independently exercise this discretion.

As the new ICC Prosecutor, Luis Moreno-Ocampo, begins to pursue his duties, the Office of the Prosecutor must be able to formulate a policy that accommodates its legal duty to give effect to the rule of law with the political exigencies of acquiring the support needed to give effect to its decisions. This paper evaluates the theoretical and pragmatic tensions that exist between these two countervailing dynamics, with a view to formulating a policy-based approach that builds on the best practices of previous international criminal courts


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