The powers of the prosecutor to initiate proceedings before the International Criminal Court (ICC)

Abstract

The atrocities that took place in WWII led to the creation of the International Criminal Court: a permanent Court, with the power to investigate and prosecute those crimes falling under its jurisdiction. This research project will analyse the Prosecutor of the International Criminal Court in initiating an investigation under her proprio motu powers in accordance with article 15 (1) ICCSt. In such regard, the Prosecutor initiates an investigation upon her own initiative, where the particular State is unwilling or unable to investigate and prosecute. The Office of the Prosecutor receives communications from States members of the International Criminal Court and also from non-State members, provided that they are a reliable source, in connection with the ferocious atrocities that take place in that particular State or Country. By virtue of article 53 ICCSt, the Prosecutor conducts a preliminary examination of the communications received. Firstly, she has to analyse whether the particular situation falls under the jurisdiction of the Court, that is, whether the offence in question pertains to one of the crimes enlisted under article 5 ICCSt. In order for the communications to be transformed into an investigation, the Prosecutor must determine if there is a reasonable basis to proceed, by taking into consideration the gravity of the offence and the interest of justice. At times, the interest of the victims may outweigh that for the initiation of an investigation. In such regard, the investigation is not opened. The decision of whether there is reasonable basis to proceed is at the discretion of the Prosecutor, which in such regard has to exercise a wide discretion.