Comunicación intencionada y comunicación indicadora

The idea of the inclusion of a PTC within the Court’s system grew in support throughout the Statute negotiations. The PTC was seen as the organ necessary to counterbalance the wide discretion given to the Prosecutor and to ensure that his actions were not abusive or the result of improper political pressures.109 The inclusion of the PTC within the Court’s architecture was the decisive element that sealed agreement between the opposing views as to the Prosecutor’s independence. On the one hand, there were those supporting the idea of a fully empowered Prosecutor able to initiate investigations and prosecutions whenever heinous crimes were committed in the territory or by nationals of a State Party. On the other hand, there were those who considered essential the authorisation of the relevant State(s) or the UNSC before the commencement of any investigation or prosecution. The main argument bringing the PTC into the equation was that, in the absence of political backing from the State or the Council, the Prosecutor would need the judicial backing of the Court.110 Therefore, politically sensitive decisions would not be taken in a solitary fashion by the Prosecutor but in a collective manner, ie by the Prosecutor under the judicial control of the PTC, thus not only preventing possible abuses of power but also shielding the Prosecutor from external pressures.111

109 _{Côte d'Ivoire, ICC-02/11-15-Corr para. 8.} 110 _{(n 41) Fernández de Gurmendi 184.} 111 _Ibid.

The role assigned to the PTC has been described in terms of its activities as: (i) a filter against futile, irrelevant, unreasonable or duplicate investigations; (ii) a safeguard for the rights of the accused and victims and the fairness and completeness of the investigation; and (iii) an impulse for the proceedings in view of the trial.112 The PTC may also be seen in more general terms to provide crucial supervision over the activities of the Prosecutor.113 _{The PTC exercises}

judicial control over fundamental prosecutorial choices as regards the situations and cases to be brought before the Court and ensures protection of the rights of those affected by the Court’s investigations and prosecutions.

It could be argued that the fact that certain of the Prosecutor’s decisions are subject to judicial control by the PTC does not necessarily provide for further safeguards. Some may argue that there may be little reason to suspect that judicial decisions would be necessarily less susceptible to external pressures than those of a Prosecutor. In effect, Article 42 recognises the Prosecutor’s independence as a separate organ of the Court, who shall not seek or act on instruction from any external source and has full authority over the management and administration of the office. However, a contextual reading of the Statute supports the view that the PTC’s judicial review of the Prosecutor’s discretionary decisions does indeed make the Court less susceptible to manipulation from external actors.

First, the PTC judges are also independent in the performance of their functions pursuant to Article 40(1). In practical terms, judges are more independent than the Prosecutor from the ASP – the, strictly speaking, ‘political’ organ of the Court – in particular considering their mechanism of election,114 and removal.115 In addition, while the Prosecutor will take his discretionary decisions in a

112 _{Michele Marchesiello, ‘Proceedings before the Pre-Trial Chambers’ in Antonio Cassese, Paola}

Gaeta and John R.W.D. Jones (eds), The Rome Statute of the International Criminal Court: A

Commentary, vol II (Oxford University Press 2002) 1235.

113 _{Olivier Fourmy, ‘Powers of the Pre-Trial Chamber’ in Antonio Cassese, Paola Gaeta and John}

R.W.D. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary, vol II (Oxford University Press 2002) 1229.

114 _{Pursuant to Article 36(6)(a) judges are elected by, at least, a two-thirds majority of the}

States Parties present and voting in the ASP meeting convened for that purpose. Pursuant to Article 42(4), the Prosecutor is elected by an absolute majority of the members of the ASP.

115 _{Pursuant to Article 46(2)(a) a decision as to the removal of a Judge has to be taken by a two-}

thirds majority of the ASP upon a recommendation adopted by a two-thirds majority of the other judges. However, pursuant to Article 46(2)(b), for the removal of the Prosecutor an absolute majority of States Parties is sufficient.

solitary fashion, the judges are required to reach a collegial consensual decision on sensitive matters. While in accordance with Article 39(2)(b)(iii), a single judge can carry out the functions of the PTC, the most important decisions involving judicial control over the Prosecutor’s discretion must be concurred in by the majority of a PTC pursuant to Article 57(1)(a).

Further, while both the Prosecutor and the judges are tasked with the same obligation of ‘finding the truth’ pursuant to Articles 54(1) and 69(3), the judicial function in itself makes the PTC judges less susceptible to pressures from States or the Council to act in one way or another. The PTC will be simply complying with its function if it decides not to authorise the commencement of an investigation, not to issue a warrant of arrest or not to confirm the charges brought by the Prosecutor. In contrast, the Prosecutor’s role is different insofar as he is tasked with conducting investigations and prosecutions and has the onus to prove the guilt of the accused beyond reasonable doubt pursuant to Article 66(2) and (3). As such, unlike the judges, the Prosecutor’s performance will be judged by the number of situations and cases that he is able to successfully investigate and prosecute. As previously discussed, the Prosecutor does not have at his disposal a police force or enforcement or subpoena powers of any kind. Therefore, for the success of his investigations and prosecutions the Prosecutor is highly dependent on the cooperation of States and the Council.

Within this context, the Statute gives the PTC the function of ensuring that the exercise of the ample discretion given to the Prosecutor is not an arbitrary or abusive exercise of his powers under the Statute. However, as will be discussed in the following Chapters, the drafters were rigorous in striking a balance between the need to counterbalance the Prosecutor’s discretionary powers and the necessity of preserving his independence. Accordingly, only some of the Prosecutor’s discretionary decisions are subject to judicial control by the PTC. The PTC does not have a general oversight power over the Prosecutor’s activities: it is better characterised as the Court’s ‘gatekeeper’.