Comparing the "interests of justice": what the International Criminal Court can learn from New York law.

• Published date: 01 January 2013
• Author: Keller, Linda M.
• Date: 01 January 2013

ABSTRACT

This article addresses the debate over whether the Prosecutor of the International Criminal Court should adopt ex ante guidelines for prosecutorial discretion in order to increase transparency and legitimacy. It focuses on one of the most ambiguous provisions of the Rome Statute: allowing the Prosecutor to decline to prosecute in the "interests of justice. "Specifically, this article will examine the experience of New York in operationalizing a domestic statutory analogue to the Rome Statute provision." dismissal of cases "in furtherance of justice. " An analysis of New York law yields three core lessons that carry over to the international sphere despite differences in the systems. First, a requirement of a written rationale regarding the exercise of discretion does not necessarily yield thorough or convincing explanations. This undermines arguments that the legitimacy of the International Criminal Court will be enhanced by public explanations of prosecutorial discretion. Second, such explanations may backfire when the balancing of nebulous factors leads to apparently inconsistent or arbitrary reasoning and results, which may undercut the credibility of the decision-maker. Finally, the lack of a guiding theory to drive the interpretation of ambiguous criteria can lead to more confusion than clarity when there is no agreement on the theoretical justifications for prosecution, as seen in both the domestic and international systems. The experience of New York, therefore, supports skepticism of the efficacy of ex ante criteria for the exercise of discretion, particularly for complex decisions regarding the interests of justice. If such criteria are nonetheless adopted, the New York experience offers suggestions on crafting a more effective approach.

TABLE OF CONTENTS
                INTRODUCTION
                I. INTERESTS OF JUSTICE UNDER THE ROME STATUTE
                II. DEBATE OVER GUIDELINES FOR ICC PROSECUTORIAL DISCRETION
                III. LESSONS FROM NEW YORK DISMISSALS IN THE INTEREST OF
                 JUSTICE
                 A. New York Statutory Criteria
                 B. The New York Statute's Relevance to the ICC's "Interests
                 of Justice" Provision
                 C. Comparison of "Interests of Justice" Factors
                 D. Analysis of New York Case Law and Implications for the
                 ICC
                 1. Efficacy of Requirement of Written Rationale
                 2. Counter-productiveness of Explanations
                 3. Lack of Agreement on Goals of Prosecution
                CONCLUSION
                

INTRODUCTION

The International Criminal Court ("ICC"), particularly the Prosecutor, has been criticized for its policy and practices on the selection of situations and cases regarding international crimes, such as genocide, crimes against humanity, or war crimes. (1) Under the Rome Statute establishing the ICC, the Prosecutor has the discretion to decline to investigate a situation or prosecute a case for several reasons, including the nebulous concept of "the interests of justice." (2) Many commentators have asserted that the legitimacy of the ICC would be enhanced if ex ante guidelines on prosecutorial discretion were adopted by the Prosecutor, particularly when the Prosecutor declines to investigate or prosecute in the interests of justice. Others have countered that guidelines for ambiguous provisions, which necessarily entail context-specific balancing tests, will only harm the court. All of these scholars are necessarily speculating about how particular detailed guidelines would affect the ICC. This article contributes to the debate at a time when the recently sworn-in Prosecutor may be considering the issue. (3) The article adds to the discussion by examining the decades-long experience of New York's statutory criteria for dismissals in the furtherance of justice, a domestic analogue of declining to prosecute in the interests of justice. (4)

To date, the ICC Prosecutor has not exercised his or her discretion to drop a case because of overriding interests of justice. For example, after the Ugandan situation was referred to the ICC, certain members of the Acholi community in Northern Uganda urged the Prosecutor to suspend activity against the Lord's Resistance Army ("LRA") in the interests of justice, specifically, to promote the peace process between the government and the LRA. (5) The Prosecutor, however, rejected this request. (6) The Pre-Trial Chamber did not review the decision because it can check the Prosecutor's interests of justice discretion only if the Prosecutor decides not to go forward with an investigation or prosecution. (7)

By contrast, there is a large body of case law in New York dealing with dismissals of criminal charges "in furtherance of justice." An examination of a domestic parallel to the interests of justice, however imperfect, can shed light on the potential benefits and pitfalls of an enhanced list of factors to operationalize "interests of justice" determinations before the ICC. Although there are differences in the interests of justice provisions and their implementation, there are sufficient similarities to yield lessons for the ICC.

Prior to examining the domestic law, Part I of this article briefly describes the ICC and its "interests of justice" provision. Part II examines the debate over whether further prosecutorial guidelines should be adopted, particularly for the ambiguous phrase, "interests of justice." It summarizes the policies of the Prosecutor regarding interpretation of the interests of justice and describes the positions of prominent proponents and opponents of prosecutorial guidelines. Part III explains an analogous New York statute allowing dismissals in the interest of justice and its ten factors guiding discretion. It then compares the "interests of justice" provisions in the domestic and international contexts and shows the key similarities that would allow the ICC to draw on the experience of New York. It shows the potential parallels between the New York criteria and the "interests of justice" provision of the Rome Statute. Finally, Part IV analyzes New York case law on dismissals in the furtherance of justice and derives three key lessons: (1) the questionable efficacy of requiring explanations of reasoning; (2) the potential counter-productiveness of ambiguous criteria; and (3) the detrimental impact of a lack of consensus regarding the purpose of prosecution and punishment.

This article concludes that the potential for contradictory or seemingly arbitrary outcomes based on vague and contested criteria may outweigh the benefits of more detailed factors regarding the "interests of justice." At the very least, the New York experience offers cautionary lessons that should be taken into account before the ICC Prosecutor adopts further criteria regarding the "interests of justice." Finally, the article offers suggestions on minimizing the risks should the push for the adoption of guidelines prevail.

I. INTERESTS OF JUSTICE UNDER THE ROME STATUTE

The Rome Statute establishing the ICC entered into force in 2002. As of January 2013, the ICC has 121 State Parties. (8) Under the statute, the Prosecutor is invested with the authority to determine whether investigation or prosecution is warranted. (9) The Prosecutor may open an investigation propio motu with Pre-Trial Chamber approval or based on a referral from a State Party or the Security Council. (10)

Genocide, war crimes, and crimes against humanity fall under the jurisdiction of the ICC when they are committed on the territory of, or by a citizen of, a State Party or a State that accepts jurisdiction. (11) For a referral from the Security Council, there are no limits to the jurisdiction of the ICC based on territory or nationality. (12) A case is inadmissible if it lacks sufficient gravity or is being investigated, prosecuted, or has been investigated or prosecuted by a State with jurisdiction, "unless the State is unwilling or unable genuinely to carry out the investigation or prosecution." (13)

The "interests of justice" provision is open-ended and gives the Prosecutor the most leeway to initiate, or decline to initiate, an investigation or prosecution. (14) Article 53 governs the initial investigation and prosecution stages. With regard to the initiation of an investigation, the Prosecutor shall go forward unless there is no reasonable basis to proceed. (15) The Prosecutor is instructed to consider whether: (a) there is a reasonable basis to believe that a crime within the jurisdiction of the court exists; (b) the case is admissible under Article 17; and (c) "[t]aking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice." (16)

Article 53 also allows the Prosecutor to decline to prosecute, even if there are sufficient grounds to seek an arrest warrant or summons for the accused in an admissible case. (17) Here, the statute provides that the Prosecutor can conclude that there is an insufficient basis for prosecution because "[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." (18)

The ambiguity of these provisions has led to criticism of the ICC. Specifically, the ICC has come under fire for its selection of situations and cases, with the Prosecutor often being the primary target. The Prosecutor has been criticized for focusing solely on African situations (all of the situations and cases to date come from the African continent), for bringing one-sided prosecutions (against rebel groups but not the government, for example, in Uganda), for bringing charges against both sides (in the situation in Darfur, for seeking an arrest warrant against President al-Bashir and for rebel leaders allegedly responsible for a relatively small attack against peacekeepers), and for not bringing charges in certain situations (for example, Iraq) or against certain States (for...