Delineating the interests of justice.

• Author: Lovat, Henry

INTRODUCTION

The Chief Prosecutor (the Prosecutor) (1) of the International Criminal Court (ICC) has the discretion to forego investigations as well as prosecutions in the "interests of justice." This mechanism is one means by which the demands of the nascent international criminal law regime could be reconciled with the desirability of achieving stable and secure peace agreements and democratic transitions. However, there has been some debate as to the correct interpretation of the phrase "interests of justice." This paper reviews several of the suggestions put forward, with a particular focus on the approach taken by Human Rights Watch (HRW) in a recent policy paper.

There are advantages to the approach taken by HRW in focusing on maintaining the legitimacy of the Office of the Prosecutor (OTP) and of the ICC as an institution. Nonetheless, this study concludes that it would be inadvisable for the "interests of justice" to be construed in such a manner as to effectively render the UN Security Council (UNSC) the sole body competent to decide whether or not any investigation or prosecution would be in the interests of justice. Rather, it would seem preferable for this discretion to remain within the ICC, circumscribed by regulations designed to ensure that the discretion is exercised in such a manner as to maintain, and, if at all possible, bolster the legitimacy and credibility of the ICC.

I

The Rome Statute of the ICC (the Rome Statute) gives the Prosecutor discretion to decide not to initiate either an investigation or a prosecution on the grounds that to proceed would be contrary to the interests of justice. Under Article 53(1), where there is a reasonable basis to believe that an alleged crime falls within the jurisdiction of the court and the situation in question would otherwise be admissible for investigation under the statute, the Prosecutor may nevertheless decline to initiate an investigation on the grounds that an investigation "would not serve the interests of justice," (2) having taken into account the gravity of the crime in question and the interest of the victims. In similar fashion, Article 53(2) allows the Prosecutor to conclude that there is not a sufficient basis for a prosecution when a prosecution would not be in the "interests of justice." (3) In either case, where the Prosecutor declines to investigate or prosecute in such circumstances, he or she is required to notify the pre-trial chamber of this determination and of the reasons for the decision. (4) The pre-trial chamber is then entitled to review the Prosecutor's decision, and, where the chamber undertakes a review, the decision of the Prosecutor will only be effective where it is confirmed by the pre-trial chamber. (5)

The "interests of justice" thus allow the Prosecutor significant scope to exercise discretion as to whether or not to investigate or prosecute a potential case. While this may be welcome in many circumstances, the relatively unfettered extent of this discretion has given rise to much debate. One dispute centers on whether or not the Prosecutor should decline to investigate or prosecute where prosecutorial intervention may have an undesirable effect on peace negotiations or on a domestic transitional justice mechanism, such as a truth and reconciliation commission. (6) Another dispute centers on whether the Prosecutor can or should use his or her discretion to decide to respect a domestic decision to grant amnesties to perpetrators of crimes that would otherwise fall within the remit of the ICC. (7)

The risk that the ICC would foreclose the use of truth commissions and other transitional justice mechanisms falling short of prosecution (particularly in cases involving the granting of amnesties) has long been recognized. (8) Some authors, moreover, have expressed concern at the prospect that criminal trials might come to be viewed as the only acceptable means of addressing serious and extensive violations of human rights. (9) A declaration by the international community at large that criminal prosecution was henceforth to be the only acceptable means of dealing with acts deemed criminal under international law would justifiably be thought presumptuous. (10) Against the backdrop of such concerns, Kofi Annan declared in 1998 that it was "[i]nconceivable that ... the Court would seek to substitute its judgment for that of a whole nation, which is seeking the best way to put a traumatic past behind it and build a better future." (11) Moreover, as seen from a purely consequentialist standpoint, the risk of insisting on criminal prosecutions in all cases must be balanced against the possibility that this could result in the commission of further atrocities. (12)

Conceding that it would be unfortunate if the ICC were to stand in the way of peace agreements and/or national transitional justice initiatives, it has been argued that use of the Prosecutor's discretion under the rubric of the "interests of justice" would be the most straightforward means for the court to avoid becoming involved in such situations. (13) One justification for the use of prosecutorial discretion in these circumstances is that the term "justice" can bear many differing meanings depending on context. (14) Also, the broader interests of society would certainly militate strongly against prosecutions where the threat of criminal prosecution might jeopardize a democratic transition. (15)

In line with the considerations outlined above, the OTP published draft regulations in 2003 indicating that the Prosecutor might be willing to take into account in determining the interests of justice in any given case "various national and international efforts to achieve peace and security." (16) While the draft regulations themselves do not give any more specific elucidation, a footnote to the draft suggests that the experts consulted in developing the guidelines leaned towards including consideration of circumstances in which an investigation or prosecution might "exacerbate or otherwise destabilize a conflict situation" (17) or "seriously endanger the successful completion of a reconciliation or peace process." (18) More recently, in considering whether or not the Prosecutor ought to proceed with investigations and with potential prosecutions relating to the conflict between the Lord's Resistance Army and the Ugandan government, some have taken the view that the perseverance of the Prosecutor in issuing indictments at a sensitive time during negotiations could have adverse effects on the outcome of the negotiations and, as such, would not be in the "interests of justice." (19)

II

Perhaps unsurprisingly, some maintain that it is not appropriate for the Prosecutor to take such factors into account in determining the scope of the interests of justice. Some of the legal and policy considerations relevant to this view are articulated particularly well in a 2005 Human Rights Watch policy paper entitled "The Meaning of 'The Interests of Justice' in Article 53 of the Rome Statute" (the HRW Paper). (20) The HRW Paper supports the view that the Prosecutor should adopt a narrow understanding of the term "interests of justice" which would preclude him or her from electing not to investigate or prosecute on the basis of on-the-ground developments including peace negotiations and non-judicial transitional justice processes. The HRW Paper's conclusion relies on a number of observations.

Firstly, the authors of the HRW Paper note that under the regime established by the Vienna Convention on the Law of Treaties (VCLT), a treaty should be interpreted in accordance with the ordinary meaning of its terms in context and its object and purpose. (21) Noting that the travaux preparatoires of the Rome Statute do not reflect any agreement as to the correct understanding of the term "interests of justice," HRW suggests that reference should be made to the object and purpose of the Rome Statute. (22) Using the preamble of the treaty as a basis, the authors of the HRW paper then argue that the...