Document Type : Original Article from Result of Thesis
Authors
1 PhD. Student of International Law, Qaimshahr Branch, Islamic Azad University, Qaimshahr, Iran.
2 Assistant Professor, Department of Law, Qaimshahr Branch, Islamic Azad University, Qaimshahr, Iran.
Abstract
Highlights
Introduction
The regulations and foundations of two prominent legal systems known as the common law and the statutory law constitute the principles and regulations of international criminal proceedings in general and the International Criminal Court prosecutor’s jurisdictions and authorities in particular. The transactional nature of the common law, the investigative nature of proceedings in the statutory law, and the simultaneous acceptance of both approaches in the International Court of Justice led to practical uncertainties and ambiguities regarding the International Court prosecutor’s jurisdictions and his/her interactions with tribunals, especially with pretrial branches.
Methodology
In this descriptive-analytical study, notes were taken from books, papers, dissertations, and websites to collect data. Since the desk method was used for data collection based on the available literature and documents, the researchers did not use a quantitative approach but employed a qualitative approach for data analysis along with an explanatory-analytical technique.
Results and Discussion
Since prosecutors have a wider variety of authorities in countries enforcing the common law than the countries enforcing the statutory law, they should have further responsibilities and qualifications. Firstly, a prosecutor should analyze reasons accurately to decide on charges. Unlike the countries that enforce the statutory law, prosecutors in the countries that enforce the common law may only have access to the reasons that are not in favor of defendants. Hence, prosecutors may ignore the other reasons because they do not aim to discover the truth. Secondly, prosecutors must undoubtedly have negotiation skills in the countries that enforce the common law, for they need to employ those skills in the pretrial compromise process. In the common law granting prosecutors with such a variety of authorities, legal justice cannot only be achieved through the acquisition of legal knowledge. In fact, one should have the capacity to perceive justice in addition to learning and institutionalizing the proper use of certain feelings such as compassion and empathy. The prosecutor’s jurisdictions are characterized by a dichotomous nature in the International Criminal Court. Therefore, according to the documents of the International Criminal Court and the procedure in this court, the dichotomous nature or complex authorities of prosecutors can easily be perceived in this international legal institution, which is characterized by different elements adapted from both common law and statutory law. In the International Criminal Court, a prosecutor acts as the executor of justice, thereby considering the benefits of the international criminal justice. For this purpose, the prosecutor detects, investigates, and prosecutes the most important cases of international crime. Disagreements on the prosecutor’s jurisdictions ensue from different views held by the representatives of both common law and statutory law. Their disagreements can mainly be discussed in three aspects. Firstly, the investigation process initiated by the prosecutor is generally lengthy. Secondly, constraints on the prosecutor’s jurisdictions are against the procedure for common law in which great emphasis is placed on the independence of prosecutors. At the same time, judicial supervision is enforced to guarantee the implementation of fair and efficient proceedings in statutory law. Finally, disagreements are also associated with the lack of clarity in Rome Statute of International Criminal Court.
Conclusion
There are some ambiguities with regard to the prosecutor’s jurisdictions in the International Criminal Court due to the dichotomous nature of proceedings in this institution. Some experts believe that adopting a unified approach to common law or statutory law can be more efficient than adopting a dichotomous approach, for each legal system strikes an accurate balance between the rights of parties in proceedings with no serious complications. Although the problems caused by the fundamental duality of a prosecutor’s jurisdictions appear prominent in the International Criminal Court, the logical solution does not seem to be the adoption of either common law or statutory law. In fact, the current mechanisms for domestic law will not act well in the world community. Unlike domestic legislators, it is difficult for international legislators to reach a consensus on the prosecutor’s jurisdictions in the International Criminal Court. On one hand, a prosecutor’s independence should be guaranteed undeniably to reach justice; on the other hand, overextending the prosecutor’s authorities may violate the benefits of member countries in the International Criminal Court statute. This will undoubtedly be resisted and disagreed by different countries on an international scale. Such decisions will not be consistent with efforts at reaching the goals of the International Criminal Court and the international criminal justice, for the International Criminal Court seeks to persuade as many countries as possible to accept the court statute. The efforts to resolve the intrinsic contradiction in the dichotomous nature of proceedings in the International Criminal Court ensue from judicial idealism, which places a heavy burden on international judges and courts. It may also keep judges away from the ongoing realities of the international community. Thus, instead of trying to resolve this contradiction and ambiguity, researchers should concentrate on whether the current regulations can be used more systematically than how they are used now. Evidently, the goal is to implement justice extensively in different cases of the most serious international crimes when fair trials are guaranteed. However, it goes without saying that procedural laws specify only a general framework, and the accurate implementation of procedural guarantees will finally be associated with the behaviors and attitudes of those involved in this procedure, something which cannot be justified from an idealistic perspective. In mixed proceedings, it is literally essential that prosecutors, lawyers, and judges have sufficient knowledge on both statutory law and common law so that they can appraise problems beyond the legal system in which they have been developed.
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