A Legal Oxymoron Is Expected?

The Co-Prosecutors and other interested parties to the matter are presently bracing for the Pre-Trial Chamber (PTC)’s decision of whether investigations of another batch of suspects will be launched.

PTC decisions of the past have not been those of predictability or coherence vis-à-vis international or domestic standards or the Chamber’s own jurisprudence, for that matter. However, there were still statutory and casuistic ways in which legal experts could attempt to predict which way the Chamber was going to go on a particular matter of appeal. This has been possible since matters placed before the PTC prior were those for which it was provided statutorily or for which guidance could be found in international procedural – and at times substantive – standards.

The matter presently at hand is a complete wild card for which very little guidance exists at the international or national level. Such lack of guidance can be easily explained by two facts: (1) no other national or international tribunal shared the situation of existence of co-prosecutors with the ECCC as there is normally one prosecutor within whose purview lie matters of initiating criminal cases; (2) decisions to initiate criminal cases lie squarely within prosecutorial discretion in the both dominant legal systems of the world, the common law and the civil law; such discretion is not subject to judicial or administrative review.

Therefore, for lack of a better method of dispute resolution between the Co-Prosecutors in this case, the PTC will essentially have to assume the position of an exerciser of prosecutorial discretion. By supplanting the Co-Prosecutors in this function the PTC, however, will not be able to eschew the requirement of a reasoned opinion as it normally would be the case in any instances where discretion is applied and as per the definition of the term “discretion” as such. Consequently, under the circumstances the PTC is expected to produce an oxymoron which is a reasoned opinion on the course of prosecutorial action which under normal circumstances is determined by discretion.