On The International Prosecutorial Discretion

The vitality of international criminal justice exists in thematerialization of international justice, where internationalprosecutors and their discretion are key elements. Internationalprosecutors are the persons that have powers of investigation andprosecution in international criminal judicial institutionsindependently and play an important role in international criminaljustice. It's the international criminal judicial institutions thatinternational prosecutors come from, including Nuremberg InternationalMilitary Tribunal, Tokyo International Military Tribunal, InternationalCriminal Tribunal for the Former Yugoslavia, International CrimininalTribunal for Rwanda and International Crimininal Court. It's noted thatthe hybrid tribunals have developed these years, which have hybridcharacteristics, but the author thinks they're "quasi" internationalcriminal judicial institutions rather than real ones, therefore thenon-national prosecutors in them are "quasi" international prosecutorsinstead of real ones too.With development of international criminal justice, internationalsociety has more and more interests in international prosecutors. Inparticular, the investigation proprio motu provided by Rome Statute andthe appointment in April2003of the first Prosecutor of the International Criminal Court no doubt brought into the foreground the importance of thediscretionary powers attributed to international prosecutors. In thecontext, this article aims to illustrate the definitions, the history,the basic requirements, the constitution, as well as the accountabilityand supervision of international prosecutorial discretion, then to putforward some advice to improvement of international prosecutorialdiscretion, and to retrospect and prospect the relationship betweeninternational prosecutors and China.There are six chapters in this article aside from introduction andconclusion remarks.Chapter One is on the analysis of the conceptions of internationalprosecutorial discretion. There are three parts in this chapter. The firstpart elaborates and illustrates the definition of internationalprosecutor, including its history, title, intension and extension. Thesecond part analyses the definition of discretion, including its meaning,the meaning of prosecutorial discretion, and the cmparison with jucicialdiscretion. The third part explains the attribute of internationalprosecutorial discretion, by comparing the prosecutorial discretionbetween international and national levels.Chapter Two is on the development of international judicialinstitutions and international prosecutors. This chapter centres on theconstitution, backgrounds of Nuremberg International Military Tribunal,Tokyo International Military Tribunal, International Criminal Tribunalfor the Former Yugoslavia, International Crimininal Tribunal for Rwandaand International Crimininal Court, as well as their prosecutorialsystems and powers, and then concludes that all the above-mentionedelements have impacts on international prosecutorial discretion and itsfuture.Chapter Three is on the basic requirements of internationalprosecutorial discretion. There are three parts in this chapter. First of all is about independence, which the author devides into independenceof the status and that of the employment. The second is about impartiality,which includes real impartiality and perceived impartiality. And the lastbut not the least is about efficiency. These requirements are vested withspecific, concrete and important implications, which run through theexercise of international prosecutorial discretion, and influence theoperation and development of the prosecutorial powers' architecture.Chapter Four is on the content and representation of internationalprosecutorial discretion. There are two parts in this chapter. The firstpart elaborates discretion in investigation, which consists in but notequals to investigation powers. The second part is about discretion inprosecution, which is the core of prosecutorial discretion. In addition,the author brings forward the conflicts in the exercise of discretion,for instance, the policy of inviting referrals, peripherization ofselective investigation, discrimination of selective prosecution, andinterference of peace process.Chapter Five is on the accountability and supervision ofinternational prosecutorial discretion. There are three parts in thischapter. The first are the reasons why accountability of prosecutorialdiscretion has emerged and developed. On the one hand, the practicalreasons are the misconducts of international prosecutors, their expandingdiscretion and independence, and cultivation of rule of law as well asprotection of human rights; on the other hand, the theoretical reasonsare power principle, delegation principle, harm principle. The secondpart construes accountability of international prosecutors, includingthe definition, classification, subjects and objects of accountability,ets. And in the last part the author analyzes the supervision ofinternational prosecutorial discretion consisting of judicialsupervision, policital balance and administrative intendance.Chapter Six is on the improvement of international prosecutorial discretion and China's measures. There are three parts in this chapter.The first part is on the guidelines of the prosecutorial discretion, whosenecessity have been embodied in normalization of internationalprosecutorial powers. Secondly, the author puts forward some advice onimprovement of prosecutorial discretion, such as the establishment ofconditional admitted amnesty, limited plea bargain andthe-third-party-involved independent oversight mechanism. Finally sheanalyzes the relationship between China and international prosecutors.She concludes the role of China in international criminal justice by itsparticipation in international prosecutorial work, and conceives themeasures for prosecutorial discretion in International Crimininal Courtsince China will take part in it sooner or later.