“Interests of justice” in the Afghanistan situation before the ICC

By Natalia Galindo Valbuena *

On 12 April 2019, the Pre-Trial Chamber of the International Criminal Court (ICC) rejected a Prosecutor request to proceed with an investigation concerning alleged international crimes in Afghanistan. The judges decided that an investigation into the situation in Afghanistan “would not serve the interests of justice.” This decision was highly criticized. However, what is the meaning of the “interests of justice”?

Introduction

On 12 April 2019, the Pre-Trial Chamber of the International Criminal Court (ICC) rejected a Prosecutor request to proceed with an investigation concerning alleged international crimes in Afghanistan. The judges decided that an investigation into the situation in Afghanistan “would not serve the interests of justice.”[1] This decision was highly criticized because it was the first time this clause was invoked by the ICC Pre-Trial Chamber.[2] However, on 5 March 2020, the ICC Appeals Chamber decided to amend this decision and finally provided the authorization to the Prosecutor to commence the investigation into the situation in Afghanistan.[3]

However, what is the meaning of the “interests of justice”? Neither the Rome Statute nor preparatory works reflect any consensus about the meaning or the scope of this term.[4] In this paper, I try to establish what is meant by the “interests of justice”. Firstly, I review the wording of Article 53 of the Rome Statute. Secondly, I use the rules of interpretation of the Vienna Convention on the Law of Treaties (Vienna Convention). And thirdly, as a conclusion, I suggest an interpretation of the clause of interests of justice” in relation to transitional justice mechanisms.

1.     Article 53 of the Rome Statute

The Office of the Prosecutor (OP) considers the situations under the jurisdiction and admissibility of the ICC but, exceptionally, he or she can refuse to investigate or prosecute because it may not serve the interests of justice in accordance with Article 53.

The Rome Statute established the prosecutorial discretion to initiate either the investigation or the prosecution. Mainly, Article 53 (1) (c) points out that the Prosecutor can determine not to initiate an investigation if “there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice” despite the gravity of the crime and the interests of victims.[5]

In the same way, Article 53(2)(c) permits the Prosecutor not to commence a prosecution when “A prosecution is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime.”

In both circumstances, the Prosecutor’s decision is subject to judicial review by Pre-Trial Chamber (PTC). The PTC can confirm the decision or request the Prosecutor to reconsider it. Lastly, in case there are new facts or evidence, the Prosecutor may reconsider his or her decision based on it.

2.     “Interests of justice” under the Vienna Convention rules of interpretation

Under Article 31 of the Vienna Convention, we can understand the sense of the “interests of justice” in accordance with the ordinary meaning of the words in the Rome Statute context and in the light of its object and purpose.[6] It is worth stressing that the preparatory works, as a supplementary means of interpretation[7], did not provide any definition or a clear guideline about its meaning, but it was a disputed point in the negotiations of the Rome Statute as we will see below.[8]

  • Background of “interests of justice” in Article 53 Rome Statute

The interests of justice clause appeared as a formula to extend the discretionary powers of the Prosecutor at the end of preliminary negotiations.[9] Gilbert Bitti, who was a member of the French delegation during the negotiations, pointed out that in the 1996 sessions of the Preparatory Committee, the UK delegation made an informal proposal to include this clause. Apparently, they wanted 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.’”[10]

However, the Coalition for the International Criminal Court held that the negotiations gave the chance to discuss how to deal with national amnesties and national truth and reconciliation commissions. But as they did not reach an agreement, therefore, “the drafters of the Rome Statute decided not to include these in the Statute, and preferred instead to leave a door open to the Prosecutor, with the inclusion, in Article 53 of the concept of the interests of justice.”[11]

  • “Interests of justice” considering the Rome Statute’s context, object and purpose

The interpretation of the interests of justice in light of the object and purpose found in the preamble of the Rome Statute has two views: a broad and a narrow view. 

A broad view, which is the one selected by the OP, comes up from paragraphs four, six, and eight of the Rome Statute’s Preamble. These paragraphs deemed that the State parties are determined to put an end to impunity for the perpetrators of the most serious crimes of concern in the international community. [12] Therefore, consistent with the complementary principle, the States are the first to prosecute and prevent the commission of international crimes.

On the other hand, a narrow view, proposed by Human Rights Watch (HRW), comes up from the first five paragraphs of the Rome Statute Preamble. According to HRW, the ICC’s role is to prevent the perpetration of international crimes and, consequently, guarantee “lasting respect for the enforcement of international justice”.[13] Thus, if the Prosecutor refuses to investigate or prosecute because it would not serve the interests of justice, just because there are domestic amnesties, truth and reconciliation commissions or peace processes, that decision might be against the object and propose of the Rome Statute.

The latter view is problematic because it does not allow states to make efforts to hold criminals accountable through transitional justice mechanisms, leaving the door open to OP investigations, when the states have the duty to exercise its criminal jurisdiction over those responsible for international crimes according to the paragraph 6 of the Preamble of the Rome Statute.

3.     Conclusion: Interests of justice and transitional justice mechanisms

In conclusion, despite these views, some scholars and even the OP and the ICC are still struggling to define this clause, but the truth is that it is a concept that depends on a case by case basis. Moreover, this clause is not often used because it is just for exceptional circumstances.

However, the interpretation of the “interests of justice” clause in the context of national amnesties and truth and reconciliation commissions should be broad. In accordance with paragraph 6 of the Preamble of the Rome Statute, the states are first called to make national efforts to prosecute the perpetrators of serious crimes and prevent impunity[14], and if they considered necessary, they could adopt transitional justice mechanism.

Nonetheless, it is worth recognizing that the difficulty appears when truth commissions and amnesties are provided for serious international crimes.[15] Despite there is no legal writing provision in international law about the prohibition to provide amnesty to serious crimes, recent developments confirm that amnesties are not applicable for international crimes of genocide, crimes against humanity, war crimes, and other serious violations of international humanitarian law[16]. In that sense, the states need to ensure that they are fulfilling their duty to prevent, investigate, and punish crimes that shock the conscience of humanity through transitional justice mechanisms. Therefore, the ICC Prosecutor can refuse to initiate an investigation or prosecution based on the interests of justice.

*Natalia Galindo Valbuena, abogada y candidata a magíster en Derecho Internacional de la Universidad de La Sabana.


[1] ICC, ‘ICC Judges Reject Opening of an Investigation Regarding Afghanistan Situation’ (12 April 2019) <https://www.icc-cpi.int/Pages/item.aspx?name=pr1448&gt; accessed 31 May 2020.

[2] Christian De Vos, ‘No ICC Investigation in Afghanistan: A Bad Decision with Big Implications – International Justice Monitor’ (15 April 2019) <https://www.ijmonitor.org/2019/04/no-icc-investigation-in-afghanistan-a-bad-decision-with-big-implications/&gt; accessed 28 May 2020; Mark Kersten, ‘The ICC Was Wrong to Deny Prosecution Request for Afghan Probe | USA | Al Jazeera’ (12 April 2019) <https://www.aljazeera.com/indepth/opinion/icc-wrong-deny-prosecution-request-afghan-probe-190412101757533.html&gt; accessed 28 May 2020; Maria Varaki, ‘Afghanistan and the “Interests of Justice”; an Unwise Exercise? – EJIL: Talk!’ (26 April 2019) <https://www.ejiltalk.org/afghanistan-and-the-interests-of-justice-an-unwise-exercise/&gt; accessed 28 May 2020.

[3] ICC, ‘Afghanistan: ICC Appeals Chamber Authorises the Opening of an Investigation’ (5 March 2020) <https://www.icc-cpi.int/Pages/item.aspx?name=pr1516&gt; accessed 31 May 2020.

[4] Human Rights Watch, ‘The Meaning of “the Interests of Justice” in Article 53 of the Rome Statute ’ (Human Rights Watch Policy Paper, 2005) <https://www.hrw.org/news/2005/06/01/meaning-interests-justice-article-53-rome-statute&gt; accessed 14 May 2020; Le Bureau Du Procureur, ‘Policy Paper on the Interests of Justice The Office of the Prosecutor’ (2007) <https://www.icc-cpi.int/NR/rdonlyres/772C95C9-F54D-4321-BF09-73422BB23528/143640/ICCOTPInterestsOfJustice.pdf&gt; accessed 14 May 2020; ‘The Interests of Justice- Where Does That Come from? Part II – EJIL: Talk!’ <https://www.ejiltalk.org/the-interests-of-justice-where-does-that-come-from-part-ii/&gt; accessed 14 May 2020.

[5] Art. 53.1(c) Rome Statute.

[6] Art. 31.1 Vienna Convention on the Law of Treaties

[7] Article 32 Vienna Convention on the Law of Treaties

[8] Human Rights Watch (n 4); Bureau Du Procureur (n 4).

[9] Gilbert Bitti, ‘The Interests of Justice- Where Does That Come from? Part I – EJIL: Talk!’ (13 August 2019) <https://www.ejiltalk.org/the-interests-of-justice-where-does-that-come-from-part-i/&gt; accessed 30 may 2020; Coalition for the International Criminal Court, ‘Interest of Justice Background’ <http://iccnow.org/?mod=iojbackground&gt; accessed 30 may 2020.

[10] Bitti (n 8).

[11] Coalition for the International Criminal Court (n 8).

[12] Bureau Du Procureur (n 4)

[13] Human Rights Watch (n 4).

[14]Juana I Acosta and Ana M. Idarrarra, ‘Y Sancionar En Transiciones de Conflicto Armado a Una Paz Negociada : Convergencias Entre El Sistema Interamericano de Derechos Humanos The Scope of the Duty to Investigate , Prosecute and Punish in Transitions from Armed Conflict to a Negotiated Peace : ’ 55.

[15] Darryl Robinson, ‘Serving the Interest of Justice: Amnesties, Truth Commissions and the International Criminal Court’ (2003) 14 European Journal of International Law 481.

[16] Dražan Ðukic´dražan Ðukic´, ‘Transitional Justice and the International Criminal Court-in “‘the Interests of Justice’”? *’, vol 89 (2007) <http://www.icc-cpi.int/pressrelease_details&id5114&l5en.html&gt; accessed 14 May 2020.

[17] Howard Morrison Judge and others, ‘Public Document Judgment in the Jordan Referral Re Al-Bashir Appeal’ (2019).

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