‘In the Interests of Justice’ and Independent Referral: The ICC Prosecutor's Unprecedented Powers

Abstract

The powers accorded the prosecutor by the Rome Statute have been the subject of much recent debate. Critics contend that the ex officio powers for triggering jurisdiction allow for abuse. This however ignores the rigorous requirements of the Statute for the appointment of the Prosecutor. Moreover the limited danger posed is far outweighed by the need to provide for an independent, credible Prosecutor. The Prosecutor's power to forego investigation and prosecution where this serves the interests of justice has also been widely critiqued for inadequately accommodating amnesties in democratic transitions. It is argued that amnesties which adhere to internationally accepted guidelines are consistent with the interests of justice and that the prosecutor may therefore defer to domestically enacted amnesty processes.