Amicus Curiae and Counsel

Referring a case to a national jurisdiction, according to Rule 11 bis, involves various critical decisions. First of all, it concerns the juridical interpretation of the system's provisions, which is far from easy (like most procedural issues before the international criminal jurisdictions). The difficulties are due, as often happens at the international level, to the lacunae left by the statutory provisions, which leave many unresolved aspects to be addressed by those interpreting. Moreover, it interferes with the prosecution strategy. The selection of the forum to which to refer the case, in fact, may well be part of a broader bargain between the prosecutor and the accused. In exchange for effective cooperation, in other words, the prosecutor could commit herself to promote before the judges a motion to refer the case to a specific national jurisdiction, whose sentencing policy concerning the crimes affected by the charges is more lenient than in other states that could also claim jurisdiction over the case.