ABSTRACT
This chapter sets out the background of the system of the ICC. The circumstances in which the ICC functions make the exercise of prosecutorial discretion by the prosecutor quite important for providing meaningful justice, a justice that can be both accessible and attainable by the Court. The achievement of justice is linked to the practical and political realities of the circumstances in which the Court works. This represents a challenge to the ICC prosecutor. Therefore, instead of undermining its own institutional goals, the Court through the discretionary power of the ICC prosecutor, may play an important role in promoting these goals. By providing the prosecutor with prosecutorial discretion either through the Article 53 ‘interests of justice’ provision or the proprio motu power, she will have a chance to provide more effective and meaningful justice. The chapter is divided into two main parts. The first part focuses on the Court. It considers aspects of the drafting history of the ICC Statute and the environment in which the Court works. The last section will outline the significance of the exercise of discretion and its role. The second part of this chapter concentrates on the ICC Prosecutor. It will outline the record of negotiations of the power of the ICC prosecutor, and then it will outline the stages through which the prosecutor makes an investigatory and prosecutorial decision. Finally, it will discuss prosecutorial discretion in terms of referrals and a proprio motu power during both investigation and prosecution stages.
