Distinction with prosecutorial discretion
|Decision on Holbrooke Agreement - 12.10.2009||
39. Additionally, the Appeals Chamber considers that the Appellant is not advancing an argument concerning the scope of the Tribunal’s jurisdiction when he claims that the Prosecution’s discretion not to prosecute an individual demonstrates that no UNSC resolution is necessary in order to limit the jurisdiction of the Tribunal. The Appellant confuses the two distinct notions of jurisdiction and prosecutorial discretion. The scope of the substantive jurisdiction of the Tribunal is entirely contingent upon the constitutive instrument of the Tribunal itself, that is, its Statute. On a different level, in systems of criminal law not based on the rule of compulsory prosecution, like that of the Tribunal, prosecutors possess the discretion not to bring before the court cases that theoretically fall within the court’s jurisdiction. In other words, the fact that the Prosecution may decide not to prosecute an individual does not necessarily mean that, had the Prosecution decided to prosecute that individual, the Tribunal would not have jurisdiction over him or her. Jurisdiction and prosecutorial discretion are two independent issues.
41. The Appeals Chamber considers that, as a logical consequence of the two premises above, it follows that the alleged Agreement could not bind the Tribunal even if it were to be attributed to the Prosecution. The Appeals Chamber recalls that, while “[i]t is beyond question that the Prosecutor has a broad discretion in relation to the initiation of investigations and in the preparation of indictments”, this discretion is not unlimited and must be exercised within the restrictions imposed by the Statute and the Rules. Pursuant to the restrictions to the Prosecution’s discretion provided by Rule 51 of the Rules, the Prosecution was not in a position, at the time of the alleged Agreement, to withdraw the indictment against the Appellant without the leave of a Judge of the Tribunal. Consequently, even if the involvement of the Prosecution in the making of the alleged Agreement were proved, the alleged Agreement would not be binding on the Tribunal, as an indictment against the Appellant had already been confirmed at the time.
 Reply, para. 5.
 Prosecutor v. Zejnil Delalić et al., Case. No. IT-96-21-A, Judgement, 20 February 2001 (“Čelebići Appeal Judgement”), para. 602.
 Čelebići Appeal Judgement, paras 602-603.
 At the time of the alleged Agreement, Rule 51(A) of the Rules read as follows: “[t]]he Prosecutor may withdraw an indictment, without leave, at any time before its confirmation, but thereafter only with the leave of the Judge who confirmed it or, if at trial, only with the leave of the Trial Chamber”; UN Doc. IT/32/Rev. 8, 23 April 1995. The current version of Rule 51 of the Rules maintains the same requirements.
 Prosecutor v. Radovan Karadžić and Ratko Mladić, Case No. IT-95-5-I, Indictment, 24 July 1995; Prosecutor v. Radovan Karadžić and Ratko Mladić, Case No. IT-95-18-I, Indictment, 15 November 1995.