As detailed above, the Prosecutor is entitled, in accordance with the Statute, to exercise discretion in the selection of situations and cases to be heard before the Court, the individuals to be prosecuted and the charges to be brought against them. Most of these decisions will be subject to the judicial control of the PTC, but the Prosecutor will preliminarily answer them himself, in accordance with his personal judgment. The Prosecutor will therefore exercise discretion, which is not unlimited and is subject to the restrictions imposed by the Court’s legal framework.
According to Olásolo, the ICC’s Prosecutor has two types of discretion: ‘inherent’ or ‘technical’ on the one hand and ‘political’ on the other.90 For Olásolo, technical or inherent discretion is the margin of appreciation within which the Prosecutor may assess facts and interpret the law in order to find a technical solution to his legal tasks, exclusively guided by legal criteria.91 These tasks would include the selection of the facts to be investigated within the context of a situation, the determination of the best legal characterisation of the facts to be brought to trial, the means of proof to be submitted at pre-trial or trial, the assessment of whether there are reasonable grounds to submit a request for an arrest warrant and the decision as to when an investigation should be concluded.92
In Olásolo’s view, the Prosecutor has also been granted ‘political’ discretion, particularly pursuant to Article 53, which allows him to make value judgments about whether certain actions will be convenient or appropriate to the fulfilment of determined political goals.93 The ‘political’ discretion afforded to the Prosecutor, Olásolo stresses, may be either limited or unlimited. It could be considered ‘limited’ where the ultimate political goals to be achieved through its exercise are specified and the Prosecutor is unable to alter them.94 Conversely, absent such specification, as for example with the ‘interests of justice’ in terms of Article 53(1)(c) and (2)(c), the discretion given to the Prosecutor should be regarded as ‘unlimited’.95 Consequently, according to Olásolo’s approach, the Prosecutor is free to determine by himself the nature of the ‘political’ goals to be achieved through his discretion under provisions that do not specify these ends.
As stressed above, there are politics and politics, and problems arise from the imprecision in the use of the terms ‘politics’ and ‘political’. Olásolo is correct in that within the framework of the Statute, the Prosecutor’s discretion is not
90 (n 24) Olásolo, 'The prosecutor of the ICC before the initiation of investigations: A quasi-
judicial or political body?' 109.
91 Ibid 110. 92 Ibid.
93 (n 66) Olásolo, Corte Penal Internacional ¿Dónde investigar? Especial referencia a la Fiscalía en
el Proceso de Activación 295.
94 (n 24) Olásolo, 'The prosecutor of the ICC before the initiation of investigations: A quasi-
judicial or political body?' 110-111.
simply and strictly ‘technical’, in the sense that it will be always guided by legal criteria previously defined by the law. It is true that the Prosecutor is allowed to take into account certain extra-legal considerations when exercising his discretion and interpreting the vague terms of the Statute. However, the Prosecutor is not absolutely free to determine the ‘political’ goals to be achieved through his choices.
As discussed in Sections 1.1.2 and 1.1.3 above, the Prosecutor should not isolate himself from the international political order that actually created the Court, which is aimed at the ultimate political goal of preventing threats to ‘the peace, security and well-being of the world’.96 The Prosecutor is thus not expected to completely disregard the political scenario within which he is called to act; he is given in the Statute sufficient tools to properly address political concerns. However, although free to set his ‘policy options’ within the framework of the Statute, the Prosecutor does not have license to operate arbitrarily and ought to be impartial and not take sides in any conflict. Indeed, although the Prosecutor may take into account extra-legal considerations, his decisions cannot be arbitrary or biased. As such, within the context of the Statute, certain ‘political considerations’ will be illegal by definition and should play no role in the Court’s decision-making.
Yet how can the Prosecutor distinguish between the ‘politics’ or ‘political considerations’ that are illegal and those that are not? Dworkin’s constructive interpretation theory seems helpful in finding the distinguishing parameters.97 He argues that interpretation is essentially concerned with purpose. The interpreter cannot make of the object of interpretation anything he might have wanted it to be, since the object itself constrains its available interpretations: interpretation is a matter of interaction between purpose and object.98 Accordingly, when exercising his discretion, the Prosecutor is not allowed to make the Statute ‘anything he would have wanted it to be’, but is rather constrained in the policies he devises and applies by the Statute itself, which has its own purposes and goals.
96 Statute Preamble para. 3.
97 See (n 38) Dworkin, Law's Empire 52. 98 Ibid.