| Abstrakt: |
The International Criminal Court (ICC), as the world's first permanent international criminal tribunal is charged with investigating and prosecuting some of the most serious crimes of international concern, with the goal of ending impunity and enhancing criminal accountability. The ICC Prosecutor exercises prosecutorial discretion by independently referring a situation to the Court "proprio motu" if the situation satisfies the ICC's jurisdictional requirements. The Prosecutor's exercise of her prosecutorial discretion is inherently political. Given the Court's limited resources, the Prosecutor must inevitably give consideration to political expediency. Moreover, the Prosecutor relies on the political will of state leaders for cooperation with its investigations and for enforcement of the Court's decisions. The Prosecutor must therefore consider the likelihood of facing severe repercussions from state governments in response to its investigations. However, the Prosecutor's consideration of a situation's political context in its determination of whether to initiate an investigation is distinct from declining to investigate in the face of political retaliation from powerful states. To illustrate this point, this Note analyzes the Prosecutor's exercise of proprio motu powers to initiate an investigation into the alleged war crimes and crimes against humanity committed in Afghanistan. The ICC's Pre-Trial Chamber decision concluded in part that any ICC investigation would be unfeasible due to the challenge in securing meaningful cooperation from the United States. Although the ICC Appeals Chamber reversed this decision in March 2020, on September 27, 2021, the Prosecutor chose to deprioritize the alleged crimes committed by the U.S. Armed Forces and CIA personnel in its investigation. This pursuit of selective justice sends a dangerous message to the international community that situations implicating powerful states can evade ICC investigation and prosecution through acts of non-cooperation. Thus, for the ICC to most effectively end impunity for serious crimes committed by politically powerful states, the Prosecutor must wield its proprio motu powers to compel genuine and meaningful domestic action. [ABSTRACT FROM AUTHOR] |
