The function of accusation in International Criminal Court

The present survey aims to analyze the issue of the indictment function in the

process before the International Criminal Court which integrates a peculiar

justice system, result of the complex interaction between the juridical tradition

of civil law and the juridical tradition of common law. The prosecution function

is entrusted to a Prosecutor who is conceived as a hybrid figure. It is an organ

that not only performs its functions in the context of a system in which the

principle of opportune penal action applies, but which also operates on a level

that can be defined to some extent as political, since he has to move in an international

chessboard and being called to also have diplomatic relations with

states and international institutions. The discussion (Chapter 3 and 4) proposes

a non-new theme, such as that of the structure of the crime in the tripartite

system, and yet almost transfigured by the impact with international criminal

law, which opens up unexpected and unpredictable scenarios, forcing the international

criminal law to renounce and change: on the first , the abandonment

of any systematic ambition is found, on the basis of the finding that the need

for justice, the matrix of international criminal law, can not be enough to establish

a system of crime, because the axiological assumptions are not easily

convertible into incriminating norms. From the sequential treatment of typicality,

anti-juridicality and guilt, in the complexity of the international dimension,

only one certainty emerges. The contextual element, differently depending on

the type of international crime in which it is inserted, is the discrimen regarding

the common crime, and is impregnated with the marked depreciation of the

Makrokriminalität. Chapter 5 is concentrated on some thoughts and perspectives

of universalism and particularism coexist in the same historical moment

and within the same juridical system, so as to underline a sort of internal dialectic

in which universalism and particularism are in a necessarily mobile if

not unstable equilibrium. And it is easy to understand how the positive right

is naturally brought to privilege this second perspective without obviously neglecting

the key offered by history to become aware of the deeper meaning of

these two categories especially according, rectius under international criminal

justice.

Dimitris Liakopoulos is Full Professor of European Union Law at the

Fletcher School-Tufts University (MA in international law and MA of Arts in

Law and diplomacy) and Full Professor of International and European Criminal

and Procedural Law at De Haagse Hogeschool-The Hague. Attorney at Law at

New York and Brussels. ORCID ID: 0000-0002-1048-6468.