‘Interests of justice’ or ‘interests of the ICC’?
Posted: Mon Feb 17, 2025 9:30 am
The PTC reminds us that the assessment of the ‘interests of justice’ requirement ‘must be conducted with the utmost care, in particular in light of the implications that a partial or inaccurate assessment might have for paramount objectives of the Statute and hence the overall credibility of the Court’. (para. 88). It is therefore particularly ironic that its own interpretation and application of this parameter is so fundamentally flawed and has led to those very implications.
My quarrel with the PTC’s ‘interests of justice’ determination revolves on two points: the content it gives to this notion and the standard of proof it uses. Regarding the former, the PTC decision hollowed this notion of its normative content, supplanting it with extraneous considerations and thus effectively misapplying it. Although the criterion of ‘interests of justice’ is rather vague, it is not devoid of statutory meaning, contrary to what the Chamber claims (para. 89). Article 53.1.c states that ‘the gravity of the crime’ and ‘the interests of victims’ should be two factors taken into account when making this determination.
In its Request, the OTP addressed these elements at some length. It devoted no less than 28 paragraphs to the issue of gravity of potential cases to arise from the situation against the members of the Taliban and affiliated groups, the Afghan National Security Forces and the members of the US military and the CIA (Request, paras 336-64). Even though the PTC acknowledges the grave nature of the alleged crimes as part of its admissibility assessment (Decision, paras 84-86), this consideration perplexingly neither comes back in, nor has any impact on, its treatment of the ‘interests of justice’ in section VII of the Decision. In fact, the word ‘gravity’ occurs only once in that section, and even then that was only in the PTC’s statement of the text of Article 53.1.c.
Turning to the second criterion indicated by Article 53.1.c, the ‘interests of victims’, the OTP’s request similarly provided detailed information on the high level of support for the investigation among victims, bolstering its determination that the investigations would be in the ‘interests of justice’. This information was collected through direct consultations with victims’ organisations and in the form of communications and other sources (see paras 365-371).
Moreover, the PTC had the benefit of receiving victim ‘representations’ pursuant to Article 15.3 and Rule 50 (by the PTC’s own count, a total of 794 submissions on behalf of over 6,220 individuals, 1,690 families, and further 10 million persons and 26 villages (Decision, para. 27 and fn17)). These representations were collected in the difficult security circumstances, including in employment database some of the least accessible locations in Afghanistan, over the short period of December 2017—January 2018. Although the Chamber noted that those ‘usefully complement and supplement’ the OTP’s submissions (para. 28), it is not evident from the Decision whether the PTC gave victim representations due consideration and weight when reaching its determination. In fact, one may wonder what sense it makes to have the resource-intensive victim participation procedure under Article 15(3) – other than using it as a façade to convey that victims’ views matter while ignoring them all the same.
Instead of taking the elements of ‘gravity’ and the ‘interests of victims’ into account, the PTC reframed the ‘interests of justice’ in a way that allowed it to sidestep the language of Article 53.1.c in favour of the more pragmatic and expediency-based concerns not contemplated by the provision, such as ‘the likelihood that investigation be feasible and meaningful under the relevant circumstances’ (para. 35), ‘its [the ICC’s] organisational and financial sustainability’ (para. 88), and resource constraints (para. 95). The Chamber states openly that ‘focussing on those scenarios where the prospects for successful and meaningful investigations are serious and substantive is key to its ultimate success’ (para. 90). Clearly, the ICC’s own ‘ultimate success’ is the Chamber’s primary concern here. The PTC found that the prospects of a successful investigation and prosecution were ‘extremely limited’ and pursuing them would be unlikely to meet the victims’ objectives (para. 96). Apart from the fact that this was not what victims apparently thought, this is not the same as to show that the investigation as such would not be in the interests of justice. This leaves no doubt that the PTC’s analysis conflates and supplants the ‘interests of justice’ with the narrow institutional ‘interests of the Court’. Whatever those perceived interests may be – the improved conviction record, financial sustainability, institutional survival or the comfort of those working for it (including unimpeded entry to the US) –, these considerations are legally irrelevant. They have little to do with issues such as gravity of the alleged crimes and the interests of victims Article 53.1.c directs to take into account.
My quarrel with the PTC’s ‘interests of justice’ determination revolves on two points: the content it gives to this notion and the standard of proof it uses. Regarding the former, the PTC decision hollowed this notion of its normative content, supplanting it with extraneous considerations and thus effectively misapplying it. Although the criterion of ‘interests of justice’ is rather vague, it is not devoid of statutory meaning, contrary to what the Chamber claims (para. 89). Article 53.1.c states that ‘the gravity of the crime’ and ‘the interests of victims’ should be two factors taken into account when making this determination.
In its Request, the OTP addressed these elements at some length. It devoted no less than 28 paragraphs to the issue of gravity of potential cases to arise from the situation against the members of the Taliban and affiliated groups, the Afghan National Security Forces and the members of the US military and the CIA (Request, paras 336-64). Even though the PTC acknowledges the grave nature of the alleged crimes as part of its admissibility assessment (Decision, paras 84-86), this consideration perplexingly neither comes back in, nor has any impact on, its treatment of the ‘interests of justice’ in section VII of the Decision. In fact, the word ‘gravity’ occurs only once in that section, and even then that was only in the PTC’s statement of the text of Article 53.1.c.
Turning to the second criterion indicated by Article 53.1.c, the ‘interests of victims’, the OTP’s request similarly provided detailed information on the high level of support for the investigation among victims, bolstering its determination that the investigations would be in the ‘interests of justice’. This information was collected through direct consultations with victims’ organisations and in the form of communications and other sources (see paras 365-371).
Moreover, the PTC had the benefit of receiving victim ‘representations’ pursuant to Article 15.3 and Rule 50 (by the PTC’s own count, a total of 794 submissions on behalf of over 6,220 individuals, 1,690 families, and further 10 million persons and 26 villages (Decision, para. 27 and fn17)). These representations were collected in the difficult security circumstances, including in employment database some of the least accessible locations in Afghanistan, over the short period of December 2017—January 2018. Although the Chamber noted that those ‘usefully complement and supplement’ the OTP’s submissions (para. 28), it is not evident from the Decision whether the PTC gave victim representations due consideration and weight when reaching its determination. In fact, one may wonder what sense it makes to have the resource-intensive victim participation procedure under Article 15(3) – other than using it as a façade to convey that victims’ views matter while ignoring them all the same.
Instead of taking the elements of ‘gravity’ and the ‘interests of victims’ into account, the PTC reframed the ‘interests of justice’ in a way that allowed it to sidestep the language of Article 53.1.c in favour of the more pragmatic and expediency-based concerns not contemplated by the provision, such as ‘the likelihood that investigation be feasible and meaningful under the relevant circumstances’ (para. 35), ‘its [the ICC’s] organisational and financial sustainability’ (para. 88), and resource constraints (para. 95). The Chamber states openly that ‘focussing on those scenarios where the prospects for successful and meaningful investigations are serious and substantive is key to its ultimate success’ (para. 90). Clearly, the ICC’s own ‘ultimate success’ is the Chamber’s primary concern here. The PTC found that the prospects of a successful investigation and prosecution were ‘extremely limited’ and pursuing them would be unlikely to meet the victims’ objectives (para. 96). Apart from the fact that this was not what victims apparently thought, this is not the same as to show that the investigation as such would not be in the interests of justice. This leaves no doubt that the PTC’s analysis conflates and supplants the ‘interests of justice’ with the narrow institutional ‘interests of the Court’. Whatever those perceived interests may be – the improved conviction record, financial sustainability, institutional survival or the comfort of those working for it (including unimpeded entry to the US) –, these considerations are legally irrelevant. They have little to do with issues such as gravity of the alleged crimes and the interests of victims Article 53.1.c directs to take into account.