Coalition for the International Criminal Court
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Interest of Justice Background
Interest of Justice Background
A group of Acholi leaders met with the Office of the Prosecutor in March 2005 to discuss the potential impact of the ICC on the Ugandan peace process. Credit: ICC-CPI / Hans Hordijk.
Article 53 of the Rome Statute governs the exercise of essential aspects of prosecutorial discretion once the Prosecutor’s power to commence actual investigatory activities has been activated.

According to some commentators, the question of the extent of the discretionary powers of the Prosecutor was still in contention at the end of the preparatory negotiations. However, a consensus slowly emerged at the Rome Conference. Delegations that were reluctant to grant the Prosecutor broad powers to initiate an investigation or decide to prosecute recognized that, because of the very nature of the crimes under the Court’s jurisdiction, the Prosecutor needed a certain amount of discretion to fulfill his duties. On the other hand, the Delegations that had opposed the judicial review of the Prosecutor’s power accepted that judicial review by the Pre-Trial Chamber could ease concerns about abuse of powers while providing an adequate balance that would not affect the independence of the Prosecutor. The text of Article 53 reflects the compromise reached in Rome.

Moreover, the negotiations leading to the adoption of the Rome Statute were also an opportunity for the Delegations to discuss how to deal with national amnesties and national truth and reconciliation commissions. Views on the matter were extremely varied, as some participants felt that prosecution was the only appropriate response whereas others felt that alternative mechanisms were acceptable. The drafters of the Rome Statute decided not to include these in the Statute, and preferred instead to leave a door open to the Prosecutor, with the inclusion, in Article 53 of the concept of the “interest of justice”.

Indeed, Article 53 provides that the Prosecutor may desist from acting either in relation to opening an investigation or in continuing with an investigation that has been opened if it appears to him that the decision to desist would be in the interests of justice.

The decision of the Prosecutor not to investigate or not to prosecute based on these grounds may be reviewed by the Pre-Trial Chamber on its own initiative, or at the request of the referring State or the Security Council, and, in such a case, the decision of the Prosecutor will only be effective upon confirmation by the Chamber.