The Interests of Justice- where does that come from? Part I

There has been much debate about the decision issued by Pre-Trial Chamber II rejecting the request by the Office of the Prosecutor to open an investigation into the situation in Afghanistan because such an investigation would not serve “the interests of justice”.

Despite the recent surge in academic interest in this criterion, which appears in article 53 of the Rome Statute (the “Statute”) of the International Criminal Court (the “ICC” or “Court”), not much has been written about its origins (for an exception, see here). Yet, the drafting history of the “interests of justice” criterion is highly instructive for its application. Accordingly, this post is divided in two parts: the first part will trace the drafting history of the “interests of justice” criterion; the second part will provide an interpretation of this criterion as informed by its drafting history.

It is worth recalling that the negotiations on the Rome Statute started on the basis of a project which was developed and finally adopted in 1994 by the International Law Commission (“ILC”). This project was discussed first in the context of an ad hoc Committee established by the United Nations General Assembly, which convened in April and August 1995. Then, a Preparatory Committee was established by the same Assembly, which convened twice in 1996, three times in 1997 and once in 1998. It is the final report of that Committee in April 1998 which was the basis for the negotiations during the Rome Conference, which took place from 15 June until 17 July 1998. Those formal sessions were completed by intersessional meetings during which useful progress was made.

The Draft Statute of the International Law Commission

There was no mention of the criterion of “interests of justice” in the Draft Statute for an International Criminal Court adopted by the ILC (“ILC Draft Statute”) in July 1994. Article 26 (‘Investigation of alleged crimes’) of the Draft Statute did not require the Prosecutor to consider specific criteria in deciding whether to initiate an investigation. This provision simply stated that the “Prosecutor shall initiate an investigation unless the Prosecutor concludes that there is no possible basis for a prosecution under this Statute and decides not to initiate an investigation”, in which case the Prosecutor had to inform the Presidency accordingly. With regard to the initiation of prosecutions, article 26(4) of the ILC Draft Statute mandated the Prosecutor to, inter alia, take matters related to admissibility into account. In addition, in the event he or she concluded, upon investigation, that there was not a sufficient basis for a prosecution and decided not to file an indictment, the Prosecutor was obliged to inform the Presidency according to the same provision. Pursuant to article 26(5) of the ILC Draft Statute, the Presidency had to review, at the request of the complainant State or the Security Council, the Prosecutor’s decision not to initiate an investigation or not to file an indictment and could request the Prosecutor to reconsider his or her decision.

Article 27 of the ILC Draft Statute (‘Commencement of prosecution’) provided that if the Prosecutor, upon investigation, concluded that there was a prima facie case he or she had to file an indictment (‘shall file’) with the Registrar (paragraph 1). The Presidency was mandated to review the indictment and determine whether there was a prima facie case and whether the case was admissible (paragraph 2).

There was also no discussion of the “interests of justice” with regard to decisions to start an investigation or a prosecution during the first year of negotiations on the ILC Draft Statute, which took place in 1995 in the context of the Ad Hoc Committee, established by General Assembly Resolution 49/53 of 9 December 1994.

The 1996 Sessions of the Preparatory Committee

The first informal proposal concerning the “interests of justice” was made by the delegation for the United Kingdom (see also here and here) during the first session of the Preparatory Committee (25 March-12 April 1996), which was established by General Assembly Resolution 50/46. That delegation proposed a modification of article 26(4) of the ILC Draft Statute to empower the Prosecutor not to file an indictment when it was not in the interests of justice to do so (negative determination). In the view of that delegation, the reference to “in the interests of justice” was intended to reflect a “wide discretion on the part of the prosecutor to decide not to investigate comparable to that in (some) domestic systems, e.g. if the suspected offender was very old or very ill or if, otherwise, there were good reasons to conclude that a prosecution would be counter-productive” (paragraph 30). The proposal to give the Prosecutor “wide discretion” was probably motivated by the fact that, at that stage of the negotiations, the text of the ILC Draft Statute in both articles 26 and 27 appeared to leave very limited discretion to the Prosecutor by the use of the word “shall”. At paragraph 14 of its proposal the British delegation indeed stated that the:

UK has also argued that the ICC Prosecutor should have discretion to refuse to prosecute even though a prima face case against an accused has been established and that the Court should not be obliged to go ahead with every case over which it has jurisdiction, or which is not inadmissible, just because there is a prima facie case. These considerations belong to an examination of the powers of the prosecutor and the court generally rather than relating to complementarity, though they are worth recalling at this point.

Interestingly, at paragraph 32 of its proposal, the UK delegation also proposed modifications to article 27(1) and (2) of the ILC Draft Statute, to the effect that the Prosecutor had to consider, before presenting an indictment for confirmation by the Presidency, whether it was “desirable in the interests of justice that the case should proceed”. Furthermore, the Presidency, before confirming the indictment was required to determine whether it was “desirable in the interests of justice that the case should proceed” (positive determinations).

It is therefore worth stressing that, at that stage of the negotiations, those UK proposals: (i) entailed both negative and positive determinations with regard to the criterion of the “interests of justice”; and (ii) were limited to the decision whether to prosecute (modifications to articles 26(4) and 27(1) and (2) of the ILC Draft Statute were proposed) and did not extend to the decision whether to investigate (no modification of article 26(1) of the ILC Draft Statute was proposed).

These informal proposals were included, together with other proposals, in an official document dated 8 April 1996. It is worth noting that in that document some proposals were made with a view to establishing different criteria the Prosecutor was meant to take into consideration for the initiation of an investigation in the context of article 26(1) of the ILC Draft Statute. These criteria were in particular “whether the case is or would be inadmissible” and “whether an investigation would be consistent with the terms of any relevant Security council decision”. Yet, no mention was made of the “interests of justice” criterion which, following the British proposal, remained confined to the prosecution stage. All those proposals were subsequently introduced in the report of the Preparatory Committee following its first session.

The UK proposals regarding the introduction of the “interests of justice” criterion were discussed further during the second session of the Preparatory Committee in August 1996 and appear in the compilation of proposals made by States. However, compared to the initial proposals, references in brackets are made to a possible “Indictment Chamber”, “Pre-Trial Chamber” or “Preliminary Investigations Chamber” as a body exercising judicial oversight over decisions by the Prosecutor regarding the initiation of an investigation and/or prosecution, in addition to the Presidency (see here at 115, 120 and 121).

The 1997 Sessions of the Preparatory Committee

The negotiations during 1997, especially during the Preparatory Committee session held from 4 to 15 August 1997, show a major evolution in the proposed use of the criterion of the “interests of justice”. For the first time, it was proposed that such a criterion be used at the stage of the initiation of an investigation in the context of article 26(1) of the ILC Draft Statute. Notably, specific considerations were attached to that criterion: a new subparagraph 1 bis (ii) bis was introduced to the effect that, prior to initiating an investigation, the Prosecutor “shall determine whether a prosecution under this Statute would be in the interests of justice [taking into account the gravity of the offences and the] [interests of victims]”. It follows from this formulation that the Prosecutor was mandated to make a positive determination with regard to the “interests of justice” prior to the initiation of an investigation.

As far as the decision of the Prosecutor not to prosecute contained in article 26(4) of the ILC Draft Statute is concerned, the criterion of the “interests of justice” continued to entail a negative determination but with the addition that the Prosecutor had to take into consideration the “interests of victims” in his or her assessment (however, no reference was made to the “gravity of the offences” in this paragraph). More interestingly, a new paragraph 4 bis appeared, which provided that a decision by the Prosecutor on the basis of the “interests of justice” had to be confirmed by the Presidency in order for it to become effective.

The text of article 27(1) and (2) of the ILC Draft Statute was not adjusted and, thus, continued to feature positive determinations concerning the “interests of justice” in relation to the submission by the Prosecutor of an indictment and the confirmation of an indictment by the Presidency or a Pre-Trial Chamber (both entities appearing in brackets as alternative adjudicating bodies).

The Zutphen meeting and the last Preparatory Committee Session in 1998

At the end of the Zutphen intersessional meeting in January 1998, the draft statute was restructured with articles 26 and 27 of the ILC Draft Statute becoming articles 47 and 51 respectively. While the texts of these articles remained substantially the same, the text of paragraph 4 bis of article 47 was clarified by stipulating more explicitly that a decision not to prosecute “based on considerations of the interests of justice” shall only become effective upon being confirmed either by the Presidency or a Pre-Trial Chamber (both entities appeared still in brackets as alternative adjudicating bodies).

During the last session of the Preparatory Committee in March-April 1998, the text of articles 47 and 51 remained substantially the same. However, article 47 became article 54 (article 54 became article 53 in the Statute finally adopted at the end of the Rome Conference) and article 51 became article 58. In addition, a “further option” was submitted for articles 58 to 61 which did not refer to the process of the confirmation of an indictment by the Presidency but instead to the issuance of a warrant of arrest and a process of confirmation of charges by a Pre-Trial Chamber. In this option, the references to the “interests of justice” totally disappeared.

The Rome Conference

During the first week of the Rome Conference, the Working Paper on Article 54 (‘Initiation of an investigation’) dated 18 June 1998 still provided that the Prosecutor shall initiate an investigation unless he or she determines that there is no reasonable basis for a prosecution under this Statute and that, in making such a determination, the Prosecutor shall consider “(c) whether a prosecution under this Statute would be in the interests of justice, taking into consideration the interests of victims” (it is to be noted that the reference to the gravity of the offences was absent from that stage of the negotiations and that it reappeared during the Rome Conference). Again, a positive determination regarding the “interests of justice” was required from the Prosecutor at the beginning of the Rome Conference.

The negotiations on the “interests of justice” were long and difficult in Rome as an agreement on what is currently article 53 of the Statute was only reached in the last week of the Conference, more precisely on 13 July 1998. Even so, a footnote was attached to that agreement stating that “some delegations expressed concern regarding the reference to the interests of justice”.

As I wrote back in 2012, on the basis of my personal recollection of the debates in Rome, where I was in charge of the negotiations on Parts 5, 6, 8 and 9 of the Statute – and helping my colleagues for the other Parts when needed – within the French delegation sent to the Diplomatic Conference in Rome from 12 June to 18 July 1998 (see here, at 1196), the developments in the negotiations regarding “the interests of justice” criterion were spurred on by a fear of unequal treatment of States before the Court. Delegations expressed concerns throughout the negotiations in Rome that (powerful) States may push the Prosecutor, by threatening for example not to cooperate with the Court, to use the “interests of justice” criterion in order not to start an investigation or a prosecution for the purposes of protecting their own nationals. Other (less powerful) States may not be in a position to push the Prosecutor to use the “interests of justice” to their advantage in a similar way.

Other arguments were also put forward against the “interests of justice” criterion, such as the inconsistency between the use of the word “shall” in the chapeau of article 53(1) of the Statute, which is obviously indicative of an obligation on the Prosecutor to start an investigation, and the adoption of such a vague criterion allowing the Prosecutor to forego an investigation. In this regard, several delegations underlined that the use of such a criterion could seriously reduce the number of investigations opened by the Court. Put more simply, the use of such a criterion has the potential to destroy the object and purpose of the Statute.

Eventually, a procedural compromise was reached in Rome, as I will discuss in more detail in the second part of this post, which alleviated, to a certain extent, the concerns expressed by several delegations during the negotiations: this compromise was the conditio sine qua non for the adoption of the interests of justice criterion in the Statute and it entails significant ramifications for its application.  

Author’s Note: the author is a former member of the French delegation during the negotiations of the Rome Statute from 1995 till 1998, currently senior legal adviser to the Pre-Trial Division at the International Criminal Court. The views expressed are solely those of the author and do not represent the views of the French Government or the International Criminal Court.