A Few Thoughts on the Interests of Justice
Posted: Mon Feb 17, 2025 9:30 am
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 employment database 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)
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 employment database 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)