The ICC Pre-Trial Chamber Decision on the Situation in Afghanistan: A Few Thoughts on the Interests of Justice

There has been a storm of criticism of the decision of Pre-Trial Chamber (PTC) II of the International Criminal Court (ICC, the Court) to reject the Prosecutor’s request for authorisation of an investigation into the situation of Afghanistan. As discussed previously on this blog (see here), the basis of the PTC’s decision was that the initiation of said investigation was not in the ‘interests of justice’, in accordance with Articles 15(4) and 53(1)(c) of the Rome Statute. The criticisms have targeted almost every aspect of this decision. In particular, questions have been raised as to whether the PTC has the power to review the Prosecutor’s decision to initiate an investigation which she considered was in the interests of justice, as opposed to a decision that it an investigation is not (see here, and here). Some have also challenged the merits of this decision on various grounds, in particular, that it would introduce non-legal considerations into an assessment that has been and ought to be narrowly circumscribed, or that the PTC could not simply conduct a de novo review of the Prosecutor’s inherently discretionary decision (see here and here). Others have presented a more systemic critique that underlying this decision is the message that all that states need to do in order to avoid an ICC investigation is to refuse to cooperate with the Court (see here and here). It has also been suggested that this decision is part of a broader effort by ICC judges to control the Prosecutor’s investigative priorities (see here).  

In this two-part post, we seek to contribute to the ongoing discussions by offering some thoughts on two particular points of contention. In this first post, we offer some comments on the PTC’s decision regarding the interests of justice. In particular, (a) we argue that the PTC did have the power, under Art. 15(4) of the Statute, to review whether the interests of justice should bar the opening of an investigation, and (b) while noting the problems with taking lack of state cooperation and budgetary issues into account in this decision, we argue (building on our earlier work here and here) that there might be circumstances where it is appropriate for the PTC and the Prosecutor to take such issues into account as a part of the interests of justice analysis.

Our second post will consider the way in which the PTC decision dealt with international humanitarian law, and more specifically, the territorial scope of application of war crimes in non-international armed conflicts (NIAC). 

The PTC’s  Powers to Review Interests of Justice Considerations

Commentators seem to disagree on whether the PTC can decide not to authorise an investigation solely on the basis of the interests of justice, as it did in the situation of Afghanistan. The ‘interests of justice’ is one of the three factors or requirements that the Prosecutor must consider before deciding whether to initiate any investigation or prosecution. In accordance with Article 53(1) and (2) of the Statute, the other two factors are: 1) jurisdiction/evidence, i.e. whether the information or evidence available shows that crimes have been committed and such crimes fall within the jurisdiction of the Court; and 2) admissibility, i.e. whether the case is inadmissible in accordance with the criteria set out in Article 17 of the Statute. Furthermore, where the Prosecutor decides to start an investigation on her own initiative, as she did in the case of Afghanistan, Article 15(3) requires her to seek the PTC’s authorisation. The disagreement seems to arise mainly from the fact that, when setting out the scope of the PTC’s examination, Article 15(4) does not explicitly mention the interests of justice. Rather, it simply says states that:

‘If the Pre-Trial Chamber, upon examination of the 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.’ (emphasis added)

Nevertheless, the fact that the interests of justice are not explicitly mentioned in Article 15(4) of the Statute does not mean that this consideration is not subject to the PTC’s judicial scrutiny. As Kevin Jon Heller has pointed out, the expression ‘reasonable basis to proceed’ is also used in Article 53(1) to refer to all three criteria mentioned above, i.e. jurisdiction/evidence, admissibility, and, most importantly, interests of justice. Further support for this interpretation comes from Rule of 48 of the ICC’s Rules of Procedure and Evidence, which clarifies that:

‘In determining whether there is a reasonable basis to proceed with an investigation under article 15, paragraph 3, the Prosecutor shall consider the factors set out in article 53, paragraph 1 (a) to (c). (emphasis added)

It is true that the interpretation of ‘reasonable basis to proceed’ as encompassing jurisdiction/evidence, admissibility and interests of justice might mean that Article 15(4)’s specific reference to the Court’s assessment of its jurisdiction was redundant. However, it is uncontroversial that the PTC must examine whether the situation is admissible before authorising any investigation. And yet no explicit mention is made of admissibility in the first part of Article 15(4). Furthermore, the fact that the final part of Article 15(4) refers to admissibility and jurisdiction as grounds on which the PTC’s can review its own decision to authorise an investigation does not mean that the interests of justice do not fall within the scope of its initial decision to authorise such an investigation. This is because, in accordance with Article 19, the Court has the power to review questions of jurisdiction and admissibility on its own motion, at any time during trial. Conversely, pursuant to Articles 15(4) and 53(1)(c), the analysis of the interests of justice is only triggered when the Prosecutor makes a decision as to whether or not she will proceed with an investigation (or when she decides not to proceed with a case/prosecution, as per Article 53(2)(c)).

It is true that Articles 53(1)(c) and (2)(c) only refer to the Prosecutor’s decision not to initiate an investigation or prosecution on the basis that the opening of such will not be in the interests of justice. Nevertheless, it seems logical that, in order to assess whether the investigation is not in the interests, the Prosecutor must always and necessarily assess whether the investigation is actually in the interests of justice, although she does not have the duty to make this assessment public or explicit. The fact that there is a presumption that the investigation/prosecution is in the interest of justice, as the language of Article 53(1)(c) and (2)(c) suggests, does not mean that the Prosecutor need not check whether this presumption is true in each specific situation. Thus, if the ICC has the power to evaluate all three aspects of the Prosecutor’s decision whether or not to initiate an investigation under Article 15(4), the Court must also assess the soundness of the Prosecutor’s conclusion that the latter is in the interests of justice. Granted, the only explicit reference to PTC review of interests of justice in Article 53(3)(b) is to a review where the Prosecutor’s decision is not to initiate an investigation or prosecution solely on the basis of the interests of justice. In the view of some, like Dov Jacobs, this would mean that only a ‘negative’ interests of justice decision is subject to review by the PTC. However, this sole reference to PTC review of interests of justice in Art. 53(3)(b) should not be regarded as providing the only basis on which the PTC can carry out an interests of justice review. What must be borne in mind is that Art. 53(3) is directed only at what the PTC may do in cases where the Prosecutor does not decide to proceed, and should be viewed in that context. That provision says nothing about what happens when the Prosecutor does decide to proceed with an investigation or prosecution. Those issues are left to other provisions of the Statute, including Art. 15(4).

Lastly, it should be recalled that it has been the practice of various PTCs to review whether the prosecutor’s decision to initiate an investigation was indeed in the interests of justice (see e.g., its decisions to authorise the investigations into the situations in Burundi, at para 190, and Georgia, at para 58). So, it is surprising that only now commentators have taken issue with this type of review.

In sum, there seems to be enough support to the view the PTC is indeed entitled, and actually required to review the Prosecutor’s decision that the investigation is in the interests of justice. 

The Scope of the “Interests of Justice”

Some have taken issue with the fact that the PTC’s analysis of the interests of justice has included non-legal factors such as state cooperation, budgetary constraints and, more generally, the feasibility of the investigation, especially the low likelihood of obtaining evidence. Clearly, as a practical matter, successful investigations and prosecutions require a degree of state cooperation.  This was already foreshadowed in the Prosecutor’s withdrawal of charges in the Kenya situation where PTC II (see here, particularly para. 25) found that state cooperation could justify the indefinite deferral of an investigation or prosecution, being ‘an objective circumstance of temporary nature’. It is also clear that states know that if they do not cooperate the chances of successful cases are low. However, as has been rightly pointed out by other commentators and the OTP itself, consideration of those factors, in themselves, as part of the interests of justice test would simply encourage states not to cooperate with the Court. This is particularly so because at this stage, the Court is considering whether to even embark on the road of investigations at all. To signal to states that, where they put up obstacles from the start, the Court will never even begin down that road seems to be giving up before one has even begun. No chance is given to the consideration that where investigations are begun they may develop their own momentum which might lead to (external or internal) pressure being brought to bear on an uncooperating state. While this may not seem likely with regard to the US, it cannot be ruled out with regard to Afghanistan or other states.

Nonetheless, these considerations do not mean that factors relating to the feasibility of investigations or prosecutions should never be included within the scope of Article 53(1)(c) and 2(c) interests of justice analysis. These factors can be relevant to the extent that they are connected to other factors that are explicitly or implicitly covered by those provisions.

In particular, if the lack of state cooperation is due to efforts to conduct peace negotiations or establish alternative justice mechanisms, and these in turn serve the interests of justice, there is no reason why cooperation or budgetary constraints should not be additional factors in the Prosecutors consideration of whether or not to initiate an investigation or prosecution. As we have argued in detail elsewhere (see here and here), we do not believe that the scope of the interests of justice is as limited as the Prosecutor has suggested it to be in its various Policy Papers on this and related issues (see, e.g., here and here). Although a comprehensive interpretation of Article 53(1)(c) and 2(c) is beyond the scope of this post, it suffices to note that ‘interests of justice’ is not a buzzword for purely judicial or legal considerations. Rather, the wording, structure and context of Article 53(1)(c) and 2(c) suggest that they are a device which enables the prosecutor to balance legal and non-legal factors that weigh both in favour of and against a criminal investigation/prosecution. Further, the Statute’s broad object and purpose seems to suggest that any interest that might be beneficial to international criminal justice falls within the scope of those provisions. Moreover, as has been argued by people like Darryl Robinson (at p. 483) and Carsten Stahn (at p. 698), interests of “justice” should not be limited merely to the retributive criminal justice. Thus, the interests of justice are not and cannot to be limited to the gravity of the crime and the interests of victims, but ought to include other factors that, in the short or long term, are conducive to achieving the aims of the ICC, which as the PTC notes (para. 89) include the fight against impunity and the prevention of mass atrocities. Thus, it could be in the interests of justice, defined in this broader way, to temporarily defer criminal investigation for the benefit of peace negotiations or alternative justice mechanisms.

Relying on state cooperation and the feasibility of investigations as part of the analysis of the interests of victims, as the PTC did in the Afghanistan decision (para. 96), is problematic for a couple of reasons. First, one would expect, given the way that the term is used in Art. 53(1)(c), that the presumption is that the interests of victims normally point towards the opening of investigations (with other factors potentially pointing against such prosecution when the Prosecutor or Court conducts an interest of justice analysis). Second, a general rule that lack of state cooperation and problems with the feasibility of conducting investigations would mean that investigations are not in the interests of victims seems itself not to be in the interests of victims in that all that it does is to encourage states to frustrate the desires of victims.

However, where state cooperation and the feasibility of proceedings are taken into account as part of the process of assessing the benefit of peace negotiations or alternative justice mechanisms, the Prosecutor or the PTC would be balancing factors which suggest that justice (broadly conceived) would be better served by preferring alternative means of achieving the broad goals of the Statute, against the interests of particular victims who wish to see investigations and prosecutions.

In conclusion, while it is difficult to speculate whether the PTC is correct in holding that not conducting investigations into this situation would be in the interests of victims, state cooperation and budgetary constraints should not always be ruled out from the analysis of the interests of justice. In any case, such considerations have already been informing the Prosecutor’s equally discretionary decisions to prioritise cases and situations (see the Policy Paper on Case Selection and Prioritisation, para. 51). Even if one quibbles with the conclusions reached by the PTC in this particular situation, what is useful about the PTC decision is that it acknowledges that the ‘interests of justice’ encapsulates broad prosecutorial discretion and consideration of politically-sensitive issues. This may in turn open up a space for a broader and more appropriate use of “interests of justice” than has hitherto been acknowledged by the Prosecutor.