Image credits - Human Rights Watch
By: Ishita Chandra*
Introduction
The concept of “interest of justice” is pivotal in international criminal law, while guiding prosecutorial decisions, framing of charges, and sentencing an individual for international crimes. Article 53(1) of the Rome Statute (hereinafter, “the Statute”) deals with the commencement of investigations against the accused. When the Prosecutor is convinced that there is a valid foundation to believe that the case falls under the Court’s jurisdiction and meets the criteria outlined in Article 17 of the Statute for admissibility, he/she is required to assess whether, despite the seriousness of the offense and the interest of the victims, there are compelling grounds to believe that launching an investigation would not serve the “interest of justice”. Article 53(2) of the Statute deals with initiation of prosecution. After an investigation, the Prosecutor may decide not to proceed with prosecution if it does not align with principles of justice, considering factors like severity of crime, victims’ interests, accused’s age and health, and the role in the alleged offense.
Thus, under Articles 53(1)(c) and 53(2)(c) of the Statute, the ICC Prosecutor has discretion to abstain from initiating legal action against the accused on the grounds of “interests of justice”. The Prosecutor may utilize this criterion when they deem that conducting an investigation or prosecution would not serve the “interest of justice”.
Notion of "Interest of Justice"
When evaluating the “interests of justice” under Article 53(2)(c) of the Statute, several aspects come into play:
The accused’s involvement in the offense, whether direct, willing, knowing, or through orchestration or command.
Supplementary considerations, such as military rank, governmental role, and potential for a decision of non-prosecution to offend the memory of the victims.
The Office of the Prosecutor (OTP) has a clear policy that prioritizes investigations into individuals with the highest level of responsibility, considering their alleged status, involvement in grave crimes, and role significance. This involves assessing the significance of the accused’s role in the overall commission of the crimes and the extent of his/her involvement, whether through direct perpetration, giving orders, or indirect participation. To ensure enduring respect for international justice, ICC must also consider the interests of the accused. Many legal systems, including international ones, commonly assess the accused’s circumstances before proceeding with prosecution, for instance, prosecuting a defendant who is terminally ill or a suspect who has been subjected to severe human rights violations may not serve the interests of international justice.
The Rome Statute, along with the Rules of Evidence and Procedure underscores the significance of victims in the process. Article 53 of the Statute mandates the consideration of the interests of victims before commencing an investigation or prosecution.
In the situation of Darfur, Sudan, Pre-Trial Chamber I noted that the criteria for the Prosecutor’s decision under Article 53(2)(c) of the Statute are not limited. In proceedings against Jean-Pierre Bemba Gombo and others (situation of the Central African Republic), Trial Chambers II and VII held that the “interests of justice” assessment may include the evaluation of whether certain conduct undermines the efficacy or efficiency of the rule of law. The ICC’s decisions on the interests of justice support the proposition that the list of factors in both Article 53(1)(c) and 53(2)(c) is flexible and could include subjective factors, such as peace and securities considerations.
Denial to Prosecute in the "Interest of Justice"
The Prosecutor’s discretion to abstain from pursuing investigations or legal action based on the “interests of justice” has sparked debates. There is ongoing discussion on whether the Prosecutor should exercise this authority when it might negatively impact peace agreements or disrupt domestic transitional justice mechanisms. This includes scenarios where individuals responsible for crimes have been granted amnesties by domestic authorities. The rationale for employing prosecutorial discretion in such cases is that the concept of “justice” can vary among individuals and contexts. Additionally, concerns that criminal prosecution might jeopardize democratic transitions have led some to hesitate in pursuing prosecutions.
The OTP has indicated its readiness to consider “various national and international efforts to achieve peace and security“ as a factor in determining what serves the “interests of justice”. However, the lack of specific guidelines has left room for interpretation. Likewise, while the preliminary regulations published by the OTP in 2003 refrain from providing more specific details regarding the factors relevant to determining the interests of justice, a footnote accompanying the draft suggests that the experts consulted during the development of the guidelines leaned toward considering situations where an investigation or prosecution could “exacerbate or otherwise destabilise a conflict situation“ or where initiating an investigation might “seriously jeopardize the successful completion of reconciliation or peace efforts”. It is also argued that the OTP’s persistence in issuing indictments at a delicate phase of negotiations could have detrimental consequences on the negotiation’s outcome and, therefore the same would not align with the concept of “interests of justice”.
Kofi Annan is frequently referenced for his statement in 1998, wherein he expressed that it was difficult to imagine that the Court would attempt to replace the judgment of an entire nation endeavouring to overcome a traumatic history and construct a brighter future. Additionally, when viewed purely from a consequentialist perspective, the concern that demanding criminal prosecutions in every instance might inadvertently lead to the occurrence of more atrocities has caused many individuals to hesitate and contemplate the insistence on prosecutions.
Robinson argues that “interests of justice” should be broadly interpreted, considering the plain text and the goals of the Rome Statute. While there is an international legal obligation on states to prosecute crimes within the ICC’s jurisdiction, this duty may not necessarily apply to the ICC itself, as it is not a party to relevant treaties.
Conversely, in 2005, Human Rights Watch (HRW) articulated the viewpoint that a narrow interpretation of the phrase “interests of justice”, which would prevent the Prosecutor from abstaining from investigations or prosecutions in situations such as peace negotiations and non-judicial transitional justice efforts, should not be endorsed. HRW also introduced an alternative interpretation for excluding amnesties when determining whether to pursue an investigation or prosecution in a particular case. HRW notes that the Rome Statute should be understood in the context of relevant principles of international law. HRW cites various commentators who argue that there exists a customary international law principle (and possibly even a peremptory norm) mandating the prosecution of individuals responsible for serious international crimes like genocide and war crimes. Additionally, it pointed to a recent state practice indicating a growing trend in international law that opposes states granting amnesties for serious international crimes. HRW thus concluded that “international law does not permit” the exemption from prosecution for the most severe international crimes and that a narrow construction of Article 53, in line with both the objectives and intentions of the Rome Statute and international legal requirements, is the appropriate approach.
Hence, it can be deduced that although it may not be feasible for the Prosecutor to ascertain the intentions and sincerity of those engaged in peace negotiations with absolute precision, this does not imply that the Prosecutor should be entirely barred from making such determinations or that they should not carefully contemplate the potential consequences of their decisions. Some of the complexities involved can also be alleviated by implementing a robust framework of ex ante standards and regulations, as the OTP is already considering. In fact, while it may present a formidable challenge, there is no reason why it should not be achievable to formulate a set of guidelines that both preserve the Prosecutor’s discretion and guarantee the legitimacy and credibility of the OTP and the ICC.
Conclusion
When interpreting the phrase “in the interests of justice” as stated in Article 53 of the Rome Statute, it is essential to consider its common meaning within its contextual framework, as well as the overall objectives and purpose of the Rome Statute. The Preamble of the Rome Statute unequivocally underscores that the Statute was established in response to widespread atrocities that pose a threat to global peace, security, and well-being. Furthermore, it explicitly emphasizes the necessity to investigate, prosecute, and punish serious crimes while rejecting impunity for such offenses. The Preamble of the Rome Statute makes it abundantly clear that its primary aim is to prosecute the most severe crimes that are of concern to the international community. The central objective and mandate of the Court are to contribute to the prevention of crimes under international criminal law, with the ultimate goal of ensuring “lasting respect for the enforcement of international justice”.
If the phrase “in the interests of justice” is interpreted in light of the Rome Statute’s object and purpose, a construction that allows consideration of a domestic amnesty, or peace process and results in permanently delaying the start of an investigation or moving from an investigation to a trial would be in principle at odds with the Rome Statute’s object and purpose, as stated in its Preamble. It is reasonable to conclude that Article 53(1)(c) can be interpreted as allowing, inter alia, the interests of victims, peace and security matters, and non-prosecutorial measures to be considered as “interests of justice” in a balancing operation against the gravity of the crime and other possible circumstances weighing in favor of the initiation of an investigation.
The concept of “interest of justice” encapsulates the global community’s commitment to holding perpetrators accountable for their actions, ensuring fairness and due process, preventing impunity, and promoting healing and reconciliation. While challenges exist in its application, the interest of justice remains a cornerstone of the international legal framework, striving to uphold the principles of accountability and human rights and the pursuit of a more just and peaceful future.
*Ishita Chandra is a third-year student of law at National Law University, Sonepat.