An Introduction To The International Criminal Court - Institute for ...

120 introduction to the international criminal court
individuals, non-governmental organisations and States that are not parties
to the Statute are given no formal recognition with respect to initiating
proceedings. However, in practice, all of them are likely to establish contact
with the Prosecutor and attempt to persuade him or her to take
action.
Giving the Prosecutor the power to initiate prosecution is the mechanism
most analogous to domestic justice systems, but it was also the most controversial.
The International Law Commission draft statute denied the Prosecutor
any such power. The Commission conceived of the court as ‘a facility
available to States Parties to its Statute, and in certain cases to the Security
Council’ who alone were empowered to initiate a case. 6 During the drafting
process, the ‘like-minded countries’ as well as the non-governmental organisations
made the proprio motu prosecutor one of their battle cries. The
concept of an independent prosecutor was an idea whose time had come,
and it gained inexorable momentum as the drafting process unfolded. 7 The
case for independent prosecutorial powers was immensely strengthened by
the extremely positive model of responsible officials presented by Richard
Goldstone and Louise Arbour, the ad hoc tribunals’ prosecutors who held
office while the Statute was being drafted.
Some powerful States vigorously opposed the idea, fearful that the position
might be occupied by an NGO-friendly litigator with an attitude. They
used the expression ‘Doctor Strangelove prosecutor’, referring to a classic
film in which a nutty American nuclear scientist loses his grip and personally
initiates a nuclear war. During the Rome Conference, the United
States declared that an independent prosecutor ‘not only offers little by way
of advancing the mandate of the Court and the principles of prosecutorial
independence and effectiveness, but also will make much more difficult
the Prosecutor’s central task of thoroughly and fairly investigating the most
egregious of crimes’. 8 In any case, as Morten Bergsmo has written, ‘[t]he
Prosecutor still needs the Security Council to be able to work effectively’ 9
6 ‘Report of the International Law Commission on the Work of Its Forty-Sixth Session, 2 May–22
July 1994’, UN Doc. A/49/10, pp. 89–90.
7 Silvia A. Fernández de Gurmendi, ‘The Role of the International Prosecutor’, in Roy Lee, ed., The
International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, Results, The
Hague: Kluwer Law International, 1999, pp. 175–88.
8 ‘The Concerns of the United States Regarding the Proposal for a Proprio Motu Prosecutor’, 22 June
1998, p. 1.
9 Morten Bergsmo, ‘The Jurisdictional Regime of the International Criminal Court (Part II, Articles
11–19)’, (1998) 6 European Journal of Crime, Criminal Law and Criminal Justice 29 at 41 (emphasis
in the original).