Afghanistan and the ‘interests of justice’; an unwise exercise?

It has been more than a week now that a reference to the ‘interests of justice’ has highjacked the international criminal law blogosphere. The recent decision by the International Criminal Court’s Pre-Trial Chamber (PTC) to reject the Office of the Prosecutor (OTP)’s request for authorization to open an investigation in the Afghanistan situation, solely on the basis of interests of justice, not only has triggered ‘outcry’, but it has also united various scholars and experts from very different backgrounds. Characteristically enough, this decision has been described as problematic for the legitimacy of the Court, especially in a period in which the Court needs a credibility boosting (see Vasiliev), as legally wrong, either due to the PTC’s review without prior invocation of interests of justice by the Prosecutor (see Jacobs ) or due to its de novo review (see Heller ), and as dangerous for the entire feasibility of the project, given the message it conveys in cases of no cooperation. In simple words, there is a striking consensus that this is a very bad decision (see De Vos and Kersten).

Several legal aspects of the decision have been already addressed by a series of commentators (see Jacobs and Akande and Labuda) and in the interests of  justice for the readers, I will refrain from repeating them. I have also suggested in the past the revision of the very narrow OTP policy paper (see JICJ) and recommended the consideration of the interests of justice via the angle of a fairness based theory of prosecutorial legitimacy (see EJIL). However, for the purposes of this very short intervention I would like solely to question the judicial wisdom, or mainly the lack thereof, to utilize this controversial tool in this particular moment of time.  In other words, was the invocation by the judges of this concept for the very first time a wise exercise of their judgment or not?  

One could observe a scholarly tendency to address grandiose concepts such as legitimacy/credibility/effectiveness in abstract terms, without paying enough attention to human agency. Yet, it is individuals who exercise discretion, deliberate and take decisions, especially in ‘hard cases’. The phenomenon of decision-making has been analyzed via various normative angles that range from legalistic propositions of narrow ‘objective’ rule application to more ‘subjective’ moral theories either of deontological or utilitarian character. Here, I would like to invite the readers into an alternative formula of cognition, based on the Aristotelian philosophy of virtue ethics (aretes) which individuals in judgment positions should bear, especially when they address dilemmas of judicial intervention (see Responsible governance).  In this exercise, the virtue of phronesis or practical wisdom will become the angle of assessment for the particular PTC’s decision.  The virtue of phronesis is very much based on the notion of common sense that enables judges to act with a Weberian ‘sense of proportion’ or with a sense of perspective, while exercising their krisis. Phronesis is the next step of intellectual wisdom, which assesses the entirety of the context, moving from the general to the particular and back again. In that sense, phronesis provides the means for both deliberation and liberation while strengthening the capacity of the decision-maker to assess the particularities of a situation, before making a choice.

As I have argued in the past, the “interests of justice” reference is not only a problem of content (i.e. of meaning in abstracto). It is also a problem of application (i.e. of meaning in concreto). This latter dimension pertains to the width and scope of the policy priorities and extra-legal considerations that the Prosecutor may take into account when exercising her discretion. The latest academic debate, triggered by the “creative ambiguity” of the language of Article 53 of the Rome Statute, illustrates the dynamic nature of this reference. In respect of its content, the PTC appears to suggest a different understanding from the one adopted by the OTP policy paper (see policy paper). Specifically, the PTC limits its potential content to effective and feasible investigations, based on a teleological interpretation of the Rome Statute. Additionally, and contrary to the negative phrasing of Article 53, the PTC adopts a positive conception when it suggests how an investigation would serve the interests of justice (para. 89).  When it comes to the application of the interests of justice, the PTC once more departs from the OTP policy paper and recommends a number of novel factors that must be taken under consideration, such as the relevant time from the commission of crimes, the prospect of cooperation and the existence or not of evidence (para. 91).

As a general observation, I would dare to suggest that the PTC’s judicial initiative gives the impression of an attempt to address some aspects of the so called ‘backlash’ against the Court and the various critiques it has triggered due to its activity or inaction. However, this exercise oscillates between a series of false binaries, such as the role of law v. politics, idealism v. realism, faith v. critique, when reality is much more nuanced and perplexing.  In this context, the PTC’s activism not only fails to open the path for the absolutely necessary discussion about the limits of international criminal justice and the interplay between law and politics, but additionally it renders the interests of justice reference obsolete.

Moving to more particular remarks, I find the PTC’s decision unfortunate and unwise for a variety of reasons.  First of all,  it is well known that the interests of justice reference has due to its inderteminacy already triggered suspicion and even hostility, as it is considered to be a political tool inside a legal instrument such as the Rome statute.  On this note, the fact that the PTC chose to apply it for the very first time  in the Afganistan situation, reasonably provides further grounds for critiques of politicization, neo-colonialism and hegemony. Phronesis requires the judges to exercise their judgment about the timing of their intervention, especially in a period where there are existential concerns about the future of the ICC. We all know that some kind of politics are inherently part of the judicial exercise; yet the main question is how this fine balance is exercised and what kind of ‘perception’ it produces. The unecessary application of the interests of justice in a very controversial situation does not indicate a wise assessment of its concequences.

Second, the importance of the interests of justice reference rests upon its elusiveness or else its indeterminacy. It is one of those concepts we cannot provide a clear answer about its content cause there is not a definite one. It is a matter of discretion. This  prosecutorial discretion must be exercised with phronesis followed by wise judicial review. In our case, this judicial intervention lacks the necessary practical wisdom. The adoption by the PTC of an equally narrow content but towards a different direction than the OTP policy paper does not do any justice to the interests of justice. Phronesis requires consideration of the relevant activity by other judicial actors, especially in cases of high controversy.  The OTP, being primarily entrusted with the analysis of the concept, had already produced its understanding and consistently reiterated it for the last twelve years.  Contrary to that, the PTC’s decision appears to totally ignore the previous conceptual work of the OTP in an almost ‘authoritarian’ way and thus validates those voices of concern about an on-going judicial tendency to limit the width of prosecutorial discretion.

Third, phronesis requires also from the relevant actors to exercise their judgment about the substance of their claims. Setting aside for now whether the PTC had the capacity to proceed with this review, this particular decision raises questions regarding what I call a common sense of responsibility and imagination.  First of all, the eccentric reference to OTP’s resource allocation raises questions about the capacity of the PTC to assess a factor that falls within the primary domain of the OTP. But even more, the controversial analysis of the interests of victims (whose expectations will be disappointed) renders so relevant what Tom Franck said in a different context “[l]aw…does not thrive when its implementation produces reductio as absurdum: when it grossly offends most persons common moral sense of what is right.”

In the interests of justice, judges and prosecutors should exercise their judgment with responsibility and wisdom.  The same applies when they respond to critiques about their judgment. Neither automatic defensive responses (“we solely apply the statute” and “we do not surrender to political pressure”) nor convulsive judicial activism can provide a cathartic way of self reflection and reassessment.  Moreover, the interplay between law and politics is a not a new challenge for judicial actors and scholars. It lies in the heart of our existential anxiety.  Maybe it is time to address it with the same phronesis and responsibility.  Contrary to the current zeitgeist of a revived Schmittian mentality, I suggest that a phronetic exercise of deliberation and action could minimize the triggers of polarized contestation and conflict. Unfortunately, this decision does not operate towards this direction.