Study On Judges' Discretion Of International Criminal Court

As for the judge in the process of performing judicial functions, it isindispensable to interpret ambit of norms, coordinate conflicts between differentnorms and make up holes of norms independently and justly by the application ofdifferent rules and methods for interpretation. Considering that the InternationalCriminal Court's cases' nature of heavily threatening the world's peace and safetygave rise to unavoidable political connection between the Court, Security Council andrelated countries, the author thinks it is necessary to analyze and generalize the lastten years' judicial practice of the Court systematically in order to clarify the functionof political element in judicial process, characters of exercise of discretion, theimmense meaning of the discretionary practice to international criminal litigation andthe role of the Court in international community.The paper consists of five chapters, about158,000characters, its main contentsinclude as follows:Chapter â…  gives a brief discussion of the general theory of the judges'discretion. To be combined with the basic theories of the discretion, application andinterpretation of law, the thesis points out the categories of the Court's discretion thatwill be investigated and the general situation of application and interpretation of thelaw during the Court's past judicial practice.Chapter â…¡ analyzes the discretion issues in the process of the Court'sself-triggering decision on the admissibility. After introducing the research category generally, the thesis takes cases of 'The Prosecutor v. Bosco Ntaganda' and 'TheProsecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen' forexamples respectively to analyze systematically and summarize the conditions for theCourt's self-triggering the decision of the admissibility to the case and points out therules and methods the Courts interpret Statutory norms.Chapter â…¢ analyzes the discretion issues of other parties (including thedefendent and related country within the jurisdiction over the case) challenging theadmissibility of the case. After introducing the research category generally, the thesisanalyzes the admissibility issues raised by the related country and defendentrespectively. As to the country's challenge, it mainly comments on the objectivecriteria of the procedural discretion insisted on by the majority of pre-trial chamberand appeal chamber by comparing the dissenting opinions between Judge AnitaUSacka and other judges of the pre-trial chamber and appeal chamber. Referring tothe defendent's challenge, it mainly puts emphasis on the Court's interpretation'spractice of reaching the same destiny by using different interpreting methods andcomprehensively analyzes characters of the discretion on issues of "abuse proceduretheory" and the Court's discretionary power to internal judicial mechanism.Chapter â…£ mainly tracks the Court's practice on evidence issues. Afterintroducing the research category generally, the thesis analyzes the Court'sdiscretionary practice to the proof of evidence, principle of evidence and questioningwitnesses. It is concluded from the above that the Court tends to widely admit theadmissibility of the evidence and strengthen and consolidate its ability to exercise itsjudicial function by means of interpreting the discretionary power only into on its ownand not to be transferred to other organs easily.Chapter â…¤ mainly discusses the Court's discretionary practice on chargingissues. After introducing the research category generally, the thesis analyzes theexercise of the Court's discretion on both the way of confirmation of charges andmaterial element of crime and model of responsibility. It generally indicates that theCourt 'positively' exercises its jurisdiction over the case by defining crimes widely,not conforming to the same way to deal with the cumulative charging and the trend to help to prosecute.The sixth part is the conclusion of the thesis. It generalizes the characters ofexercise of the Court's discretion. Specifically speaking, the purpose for the Court'sexercise of discretion is to widen the category of the Court's jurisdiction over the caseand strengthen the ability to charge crimes. The principle of complimentarity isstrictly interpreted by the objective criteria, thus making the Court compete withrelated countries on jurisdiction. The Court also relies on its exercise of discretion toguarantee the practice of judicial arrangement of political nature. At last, the thesisputs forward that the reason for the Court's discretionary character is its own locationin the international organization system. The function of the Court is to help SecurityCouncil and related countries with their political arrangement by punishing thedefendent and preventing crimes from committing, especially for the SecurityCouncil's task. During this process, the substantive and procedural law ininternational criminal law area also achieved a big development by the practice of theCourt's discretionary practice.