Abstract—Amongst various issues tabled by non-signatories or countries that haven’t ratified the Rome Statute on their non- compliance is the power given to the prosecutor. Countries like Malaysia, India and the United States are still yet to ratify the Rome Statute. This paper seeks to outline the powers of the prosecutor with the intention of justifying these powers vis-à-vis comprehending the claims of countries that are member States of the United Nations but who are all yet to ratify the Rome statute. Keywords—International Criminal Court, Prosecutor, Rome Statute, Proprio Motu I. INTRODUCTION HE establishment of the International Criminal Court is one most important things that has happened in this century. By ratifying the Rome Statute (the treaty that created International Criminal Court) a State agrees that it has the duty to investigate and prosecute the crimes included in the Rome Statute, namely genocide, war crimes, crimes against humanity (and crime of aggression which will be activated by 2017). It also agrees that should it fail to do so, the ICC may open an investigation, if the situation fulfills all mandatory requirements. The Rome Statute gives the ICC jurisdiction over these crimes when states fail to act [1]. It is stated in the 6th paragraph of the preamble of the Rome Statute that it is the duty of every state to exercise its criminal jurisdiction over those responsible for international crimes. This concept is called the principle of complementarity in the Rome statute, whereby it is mandatory on states to suppress crimes under the statute, whilst the Court would be called in only as a last option. Complementarity is a principle that represents the idea that States, rather than the International Criminal Court (ICC), will have priority in proceeding with cases within their jurisdiction [2]. This principle means that the Court will assist, but not supersede, national jurisdiction. National courts will continue to have priority in investigating and prosecuting crimes committed within their jurisdictions, Kafayat Quadri is a PhD Candidate specialized in International Criminal Law at the International Islamic University Malaysia (IIUM). She is an Assistant Research Fellow at the Nigerian Institute of Advanced Legal Studies and a Graduate Research Assistant at Ahmad Ibrahim Kulliyah of Laws, IIUM. (corresponding author’s phone: +601121177706 ; e-mail: keefayahq@gmail.com). but the International Criminal Court will act when national courts are ‘unable or unwilling’ to perform their duties [3]. The United States of America have many legislations enacted reminding itself of the importance of protecting its citizens from being charged before the International Criminal Court. Just a month after the International Criminal Court (ICC) started its operations in July 2002, the US President signed the American Service Members’ Protection Act (ASPA), which limits U.S. government support and assistance to the ICC. This Act also restricts certain military assistance to many countries that have ratified the Rome Statute establishing the ICC. It also regulates U.S. participation in United Nations (U.N.) peacekeeping missions and authorizes the President to use “all means necessary and appropriate to bring about the release” of certain U.S. and allied persons who may be detained or tried by the ICC [3]. This is all in the name of an independent prosecutor in the International Criminal Court. II. THE PROPRIO MOTU POWER OF THE PROSECUTOR The proprio motu power of the prosecutor is one of the most controversial in the discourse of the states that have refused to ratify the Rome Statute. It can be found in Article 15 of the Rome Statute. It has six paragraphs each related to the other and it discusses how the prosecutor can initiate investigations. Article 15(1) provides that the Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court. Article 15(2) relates to the process of the preliminary examinations and the means of getting more information. Article 15(3) provides that if the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected. The fourth paragraph provides that if the Pre-Trial Chamber, upon examination of the prosecutor’s request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case. Article 15 clearly shows that the proprio motu power of the prosecutor is highly unlikely the type that can be easily abused by the prosecutor. The reason clearly is that the Pre-Trial The proprio motu power of the ICC Prosecutor: the reason some states have refused to ratify the Rome Statute Quadri, Kafayat T International Journal of Humanities and Management Sciences (IJHMS) Volume 2, Issue 1 (2014) ISSN 2320–4044 (Online) 11