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

Editor’s Note: This is part II of a two-part post. Read part I here.

After tracing the drafting history of article 53 of the Statute in part I of this post, part II is dedicated to the consequences that may be drawn from the relevant drafting history for the application of the “interests of justice” criterion.

The  “Interests of Justice”: a Criterion for a Limited Use

While the preparatory works of the Statute reveal that the drafters intended to provide for an “interests of justice” criterion, it is clear that they also intended to restrict its use, especially at the stage of the initiation of the investigation. This seems logical, as such a criterion was originally proposed only with regard to the initiation of prosecutions.

This conclusion arises from a comparison of the draft Statute as it stood on 18 June 1998 with the text of article 53 adopted during the last week of the Rome Conference. Such a comparison shows radical changes during the negotiations in Rome: (i) a negative formulation was finally adopted, whereas a positive determination was required from the Prosecutor at the beginning of the Rome Conference; (ii) the text of article 53(1)(c) was amended to start with the necessity to first consider factors militating in favour of an investigation (“the gravity of the crime and the interests of victims”); and (iii) a high threshold was inserted in relation to the “interests of justice” criterion (“substantial reasons”) in comparison to the relatively low threshold (“reasonable basis”) for the two other criteria provided for in article 53(1)(a) and (b). In addition to those changes, the drafters also adopted a specific mechanism of judicial review under article 53(3)(b) of the Statute with regard to the “interests of justice” criterion, which the Pre-Trial Chamber may initiate proprio motu.

Although the vagueness of the “interests of justice” criterion is regrettable, the absence of a specific definition in the Statute was “compensated” by the procedural compromise described in the preceding paragraph, which aimed to limit the use of interests of justice criterion and prevent its abuse. As mentioned already in the part I of this post, it was this procedural compromise that alleviated, to a certain extent, the concerns expressed by several delegations during the negotiations with regard to the existence of this criterion, and finally allowed its adoption in Rome.

More generally, the difficulty in reaching an agreement in Rome on the criterion of the “interests of justice” supports a restrictive approach with regard to its application.

A Negative Determination

The drafting history further reveals that the “interests of justice” criterion was exclusively designed as a negative determination. In other words, the Prosecutor may invoke this criterion if he or she is of the view that an investigation or prosecution is not in the interests of justice. Conversely, the Prosecutor does not need to establish that an investigation or prosecution is in the interests of justice.

In this regard, it is striking that, at the end of the Rome Conference, all references to the need for either the Prosecutor or the Presidency/Pre-Trial Chamber to make a positive determination with regard to the criterion of “interests of justice” simply disappeared. Instead, the criterion was maintained in the Statute only with regard to the possibility of the Prosecutor not to investigate or not to prosecute when such an investigation or prosecution would not be in the interests of justice, in accordance with article 53(1)(c) and 2(c) of the Statute. The fact that the Prosecutor “shall consider” whether an investigation would not serve the interests of justice does not mean that he or she has to ascertain that an investigation would be in the “interests of justice”. This conclusion arises from a comparison with article 53(1)(a) and (b) of the Statute since the Prosecutor has to make positive determinations regarding the criteria set forth in these subparagraphs.

This difference between positive and negative determinations should not be underestimated as it was a highly debated issue during almost the entire Rome Conference. In this regard, by not requesting a positive determination with regard to the “interests of justice” on the part of the Prosecutor, the States allowed him or her to submit a request for the opening of an investigation or a prosecution without submitting any material or observation on this issue, in contrast with the jurisdiction and admissibility criteria where the Prosecutor must make positive determinations. As the Pre-Trial Chamber always has to decide on the opening of an investigation or a prosecution upon the Prosecutor’s request and on the basis of what is submitted to the Chamber (by the Prosecutor or by the victims with regard to the opening of an investigation), it makes it difficult – if not impossible – for the Chamber to address the issue of “interests of justice” without any submission or material submitted in this respect. This demonstrates, as will be further developed below, that if the Prosecutor does not resort to the “interests of justice” criterion, this closes the door on the use of this criterion. The fact that the Prosecutor does not have to justify in any way his or her decision to investigate or to prosecute with regard to the “interests of justice” criterion stands in sharp contrast with the requirement to provide reasons when he or she reaches a negative determination on this criterion, as provided for in rules 105(3) and (5) and 106(2) of the Rules of Procedure and Evidence (the “Rules”).

Such a negative determination by the Prosecutor with regard to the “interests of justice” is subject to a specific process of review by a Pre-Trial Chamber under article 53(3)(b) of the Statute, which the Pre-Trial Chamber may initiate proprio motu. In this regard, the intervention of the Pre-Trial Chamber, which was an integral part of the procedural compromise reached in Rome, is meant to control and restrict the use of the “interests of justice” criterion by the Prosecutor, not to increase it. The words “confirmed by the Pre-Trial Chamber” are essential as they entail that the use of the “interests of justice” criterion is only possible where both the Prosecutor and the Pre-Trial Chamber agree on its use. Such confirmation by the Pre-Trial Chamber may be either explicit or implicit, if the Pre-Trial Chamber does not use its power under article 53(3)(b) of the Statute within 180 days of notification of the decision taken by the Prosecutor, as provided for in rule 109(1) of the Rules. In my view, although the Pre-Trial Chamber has discretion not to formally review the determination made by the Prosecutor that an investigation or a prosecution would not be in the “interests of justice” (as evidenced by the use of the word “may” in article 53(3)(b) of the Statute), that Chamber will have to give reasons in case it decides not to use that discretion. This would be necessary, in particular, if victims are in favour of such a review and submit observations to that effect to the Pre-Trial Chamber, a scenario which is likely to materialise. The reason is that victims have to be notified of the Prosecutor’s decision not to investigate or not to prosecute in accordance with rule 92(2) of the Rules irrespective of the Pre-Trial Chamber’s decision whether or not to use its discretion under article 53(3)(b) of the Statute. In case the Prosecutor’s determination under the “interests of justice” criterion is not confirmed by the Pre-Trial Chamber, the Prosecutor must start the investigation or the prosecution.

The Role of the Pre-Trial Chamber under Articles 15 and 58 of the Statute

The resort to the “interests of justice” criterion must be initiated by the Prosecutor since this criterion was created first and foremost to introduce prosecutorial discretion as clearly demonstrated by its origins in the preparatory works of the Statute. Absent such an initiative by the Prosecutor, the Pre-Trial Chamber cannot invoke it on its own motion.

In this regard, it must be noted that there is neither a reference to the “interests of justice” in article 15(3) or (4) of the Statute (i.e. the provision regulating the proprio motu initiation of an investigation by the Prosecutor and the role of the Pre-Trial Chamber) nor a cross-reference in the Statute between this article and article 53 of the Statute. Furthermore, the relationship between these articles is not clearly explained in the Statute itself. This lack of coherence is due to the fact that articles 15 and 53 of the Statute were discussed at the Rome Conference in different working groups and, subsequently, the final compromise on the inclusion of article 15 in the Statute did not leave sufficient time to harmonise the two articles at the end of the diplomatic conference (see here, at paras 23-24). The preparatory works of the Statute confirm that the drafters intended to make a reference to article 15 in the chapeau of article 53 of the Statute, but this turned out to be impossible as the final compromise on article 15 was reached too late in Rome. It is worth recalling that the Working Paper on Article 54 at the beginning of the Rome Conference stated the following: “[t]his draft does not attempt to prejudge the resolution of the number of proposals to be considered by the Committee of the Whole regarding the starting point for the Prosecutor’s investigative authority. These include, among others, referrals by States, referrals by the Security Council, proprio motu authority and proprio motu authority subject to approval by the Pre-Trial Chamber. In the event the last proposal is among those accepted, the text might read ‘… shall initiate an investigation upon … or shall seek the approval of the Pre-Trial Chamber to initiate an investigation in a case under article 13, unless […]’” (see here, at footnote 1). This matter was resolved by rule 48 of the Rules, which mandates the Prosecutor to consider the factors set out in article 53(1) of the Statute and makes a link between articles 53(1) and 15(3) of the Statute.

Viewed as a whole, this system makes sense. As a starting point, the Prosecutor has to take into consideration the same criteria under articles 15 and 53 of the Statute. However, when the Prosecutor concludes that an investigation would not be in the “interests of justice”, he or she would not request authorisation to investigate. The Prosecutor instead has to notify the Pre-Trial Chamber, an obligation which is contained in the last sub-paragraph of article 53(1) and applies only when the “interests of justice” criterion is used by the Prosecutor so as to facilitate the review under article 53(3)(b) of the Statute.

In my view, the same logic should apply in the relationship between articles 53(2) and 58 of the Statute. The fact that the Prosecutor may decide not to request a warrant of arrest or a summons to appear in the “interests of justice” does not mean that he or she has to demonstrate that the issuance of a warrant of arrest or summons to appear is in the “interests of justice”. Likewise, if the Prosecutor does not reach the conclusion that a prosecution would not be in the “interests of justice”, the Pre-trial Chamber cannot decide on its own motion that the issuance of a warrant of arrest or a summons to appear would not be in the “interests of justice”, as neither the Prosecutor nor the Pre-Trial Chamber are supposed to make positive determinations with regard to this criterion (see here, paras 19-29). This possibility was considered and rejected during the preparatory works of the Statute, as shown in the first part of this post. But if the Prosecutor does not want to request the issuance of a warrant of arrest or a summons to appear due to “interests of justice” considerations, he or she has to notify the Pre-Trial Chamber for it to conduct a review under article 53(3)(b) of the Statute.

Concluding Observations

The adoption of the “interests of justice” criterion shows the ambivalence of States in their efforts to build an International Criminal Court. The purpose of such a Court is to initiate investigations and prosecute persons in accordance with the specific legal criteria set forth in the Statute. However, the insertion of a vague concept such as the “interests of justice” has created uncertainty in the quest for accountability for international crimes.

Although the existence of a criterion that may run contrary to the fight against impunity and the rights of victims to truth and justice is a reality, its use has to remain exceptional and temporary, i.e. it must be kept under review by the Prosecutor under article 53(4) of the Statute, with the aim to put an end to impunity as mandated by the preamble of the Statute. This is especially the case with regard to the initiation of an investigation, the absence of which could lead to complete impunity for an entire situation with mass victimisation, if one wants to preserve the fragile progresses made over the last decades against the most heinous crimes committed by human beings.

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.