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?