PP1046
Analítico de Periódico
FUSARI, Chiara
The decision authorising the investigation into the situation in Afghanistan : an unsought reshaping of the proprio motu prosecutorial discretion before the international criminal court / Chiara Fusari
Diritto Penale XXI Secolo, a.19 n.2 (luglio-dicembre 2020), p.283-307
DIREITO PENAL INTERNACIONAL, TRIBUNAL PENAL INTERNACIONAL, INVESTIGAÇÃO CRIMINAL
The outcomes of the proceeding related to the situation in the Islamic Republic of Afghanistan have revealed thus far a worrisome confusion within the International Criminal Court (the «Court») with regard to the legal boundaries of the discretionary scope for the decision to initiate a proprio motu investigation. The Appeals Chamber’s decision authorising the opening of an investigation, and reversing the Pre-Trial Chamber's ruling, was welcomed with undisputed enthusiasm by the international criminal justice community. Despite the unprecedented and controverstal conclusion of the Pre-Trial Chamber, yet it had the merit of allowing the international community to confront on appeal with a serious debate on the enigmatic «interests of justice» criterion. Regrettably, the Appeals Chamber engaged in a pioneering interpretative path of the relevant provisions establishing that the Pre-Trial Chamber cannot review the Prosecutor's assessment of the legal criteria set out in article 53(1) of the Statute in the context of article 15(4) proceedings. The article deconstructs the Appeals Chamber re-definition of the boundary between the Prosecutor’s discretion and the Pre-Trial Chamber’s supervision in favour of a substantially unchecked Prosecutorial discretion, which amounts to a clearly erroneous legal interpretation. In a time in which performances of the Court are under careful scrutiny, whereas the Prosecutor's workload is increasing in terms both of preliminary examinations and investigations, weakening the judicial scrutiny runs counter the needs for transparency and coherence in the selection of situations as well as the complex operational challenges the Court is facing.