Talita de Souza Dias

DPhil in Public International Law, University of Oxford; Post-doctoral Researcher at the Blavatnik School of Government, University of Oxford; Tutor in Criminal Law, St Catherine’s College,

Introduction

The preliminary examinations stage is the very first phase of investigations conducted by the Prosecutor of the International Criminal Court (ICC, the Court). It precedes the initiation of formal investigations into a situation as well as the prosecution of accused person(s). A preliminary examination may be initiated by the Prosecutor acting on their own initiative, following the receipt of relevant information. Alternatively, it is triggered by the referral of a situation by a state party or the United Nations Security Council, or by the lodging of an ad hoc declaration of acceptance by a non-state party. According to Article 53(1) of the ICC Statute (the ‘Rome Statute’), the Prosecutor must evaluate three different legal criteria before they can initiate an investigation. These are: a) whether the situation appears to fall within the Court’s temporal, geographical and subject-matter jurisdiction; b) whether it is admissible before the Court, i.e. whether the alleged crimes are sufficiently grave and have not been subject to a domestic investigation or trial; and c) whether or not the investigation would serve the ‘interests of justice’.

Articles 53(1)(c) and (2)(c) of the Statute indicate that if an investigation or prosecution is not in the interests of justice, the Prosecutor may not initiate it. Those provisions also lay down some factors to be considered in this decision. But they do not define ‘interests of justice’. This has generated some academic debate, especially given the ambiguous meaning of ‘justice’. The application of both provisions has also been the object of Policy Papers issued by the Prosecutor’s Office (see here and here). More recently, Pre-Trial Chamber (PTC) II of the ICC has considered the meaning of ‘interests of justice’ in a controversial decision concerning the situation of Afghanistan.

In this post, I discuss three key questions concerning the application of this legal test during preliminary examinations. First, whether the Prosecutor is required to decide whether the investigation is or is not in the interests of justice. Secondly, whether this assessment is subject to judicial review. Thirdly, the meaning of ‘interests of justice’.

In a nutshell, I argue that although the Prosecutor is not formally required to make a positive finding that an investigation is in interests of justice, such a finding is necessarily and implicitly made when they consider whether an investigation is not in the interests of justice. This means that the PTC must review not only the Prosecutor’s negative interests of justice decisions but also positive ones. Lastly, my view is that the Prosecutor has wide discretion when making those decisions, including by considering factors that are not explicitly listed in Article 53(1)(c).

Positive or Negative Determination?

The debate as to whether the analysis of the interests of justice is positive or negative was fuelled by the PTC II’s decision not to authorise the investigation into Afghanistan. There, the Prosecutor had simply requested authorisation of the investigation, without explicitly invoking that it was in interests of justice.

The text of Article 53(1)(c) states that ‘[i]n deciding whether to initiate an investigation, the Prosecutor shall consider whether […] [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’ (emphasis added). This suggests that the Prosecutor is indeed not required to make a positive finding that the investigation is in interests of justice. As the Prosecutor’s Policy Papers stress, ‘interests of justice’ is a countervailing consideration to the prior finding that the situation falls under the Court’s jurisdiction and is admissible, which raises a presumption in favour of an investigation. Accordingly, a decision not to proceed on the basis of the interests of justice is exceptional.

Nevertheless, that the Prosecutor is not required to make an explicit determination that the investigation is positively in the interests of justice does not mean that such determination need not be implicitly made. After all, when considering whether the investigation would not be in the interests of justice during or after preliminary examinations, the Prosecutor logically evaluates whether the investigation is in the interests of justice. These are two sides of the same coin. The fact that Article 53(1)(c) only refers to a negative ‘interests of justice’ decision simply means that there is a presumption that the investigation is in the interests of justice and, consequently, the Prosecutor need not present evidence to this effect. Conversely, if the Prosecutor determines that the investigation is not in the interests of justice, they must rebut said presumption by justifying their decision.

Judicial Review

Article 53(3)(b) of the Statute provides that a negative ‘interests of justice’ decision is subject to mandatory review by the PTC. But it remains unclear whether the Prosecutor’s positive interests of justice assessment when deciding to initiate an investigation is also subject to judicial review. The Statute does not explicitly deal with this issue. Article 15(4) simply states that: ‘If the Pre-Trial Chamber, upon examination of the request […] 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 […]’.

Granted, the omission of the ‘interests of justice’ might be taken to mean that the PTC is not required or entitled to review the Prosecutor’s determination that the investigation is in the interests of justice. However, Article 53(1) of the Statute, as well as Rule of 48 of the ICC’s Rules of Procedure and Evidence clarify that ‘a reasonable basis to proceed’ encompasses all three criteria to be considered upon conclusion of preliminary examinations, i.e. jurisdiction, admissibility and interests of justice. Therefore, the PTC must review even a positive ‘interests of justice’ determination by the Prosecutor.

Yet, given the presumption in favour of an investigation, judges need not explicitly confirm that the latter is in the interests of justice, although in practice they do (see here, para 190, and here, para 58). On the other hand, if they decide not to authorise an investigation on the basis that it is not in the interests of justice, they must present sufficient reasons and evidence in support. Furthermore, it is the Prosecutor who is first and foremost charged with making this assessment. Thus, their discretion must not be substituted by the PTC’s own review. Due deference ought to be given to the Prosecutor’s decision.

Factors

The last and most controversial debate regarding the application of the interests of justice, including during preliminary examinations, has to do with its meaning, i.e. the factors that this assessment includes. Although this question has been discussed in the past, not enough scholarly attention has been paid to it. But the controversy was recently rekindled by the PTC II’s decision that the investigation into Afghanistan was not in the interests of justice given the lack of state cooperation from the American and Afghan governments.

Two principal views exist on this matter. On the one hand, some scholars and the ICC Prosecutor argue that ‘interests of justice’ ought to be strictly interpreted and is thus limited to the criteria explicitly listed in Article 53(1)(c). These are the gravity of the crime and the interests of victims. On the other hand, others consider that the interests of justice go beyond those factors. My view is that this assessment ought to include considerations other than those explicitly listed in the Statute, both in the context of a decision to investigate (Article 53(1)(c)) and to prosecute (Article 53(2)(c)).

As I have argued elsewhere (see here and here), the text of Article 53(1)(c) indicates that ‘interests of justice’ is a consideration that countervails the gravity of the crime and the interests of victims. When the Prosecutor previously concludes that the situation amounts to international crimes and is admissible, there is a presumption that the crimes are serious enough to warrant an investigation, and that this is in the interests of victims. Thus, to have an effective meaning, ‘interests of justice’ ought to include other factors that go against the gravity of the crime and the interests of victims. As the text, context and object and purpose of Article 53(1)(c) and 2(c) suggest, this should include all considerations that are relevant to a situation and could uphold, in the long or short term, the interests of international criminal justice, broadly understood. This includes the age or infirmity of the perpetrator, their role in the crime(s), alternative forms of justice, peace negotiations, and the fact that a criminal prosecution might lead to the escalation of violence in an armed conflict. None of those factors is a self-standing consideration. Rather, all relevant considerations must be weighed together in a balancing operation. To this extent, budgetary considerations and lack of state cooperation could be relevant factors to be considered alongside others.

Conclusion

In conclusion, ‘interests of justice’ embodies broad prosecutorial discretion during the preliminary examinations stage. However, this discretion is not unfettered, as it is subject to the Statute’s legal criteria and judicial review.