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Comment on the Completion Strategy Question: “What might be some elements of an ICC completion strategy for situations under investigation?”

Transitional Justice: A Situation Specific Completion Strategy and Alternative to Investigation and Prosecution

I. Introduction

The International Criminal Court (ICC or the Court) could benefit from the development of situation specific completion strategies. Thirty-one cases have been brought before the Court and ten convictions have been issued in the twenty-one years since its inception.1 The average preliminary examination (PE) lasts between four and five years and eight of the twenty-eight PEs the ICC’s Office of the Prosecutor (OTP) has undertaken, were suspended.2 Thus, years and millions of euros are spent researching, gathering information, and investigating situations which are never even prosecuted by the Court.

The ICC oversimplifies the meaning of justice in a “one-size-fits-all and top-down” approach by presuming that criminal prosecution is the most fitting way to deliver justice to victims.3 However, this approach overlooks a viable alternative for delivering justice: transitional justice mechanisms. Transitional justice refers to the post-conflict processes societies employ to deal with human rights crimes “to achieve accountability, justice and reconciliation.”4 Since the 1970s, transitional justice mechanisms have been increasingly adopted in countries post dictatorship and civil war, 161 countries having implemented such mechanisms from 1970 to 2007.5 According to a study done by the Transitional Justice Data Base Project, when multiple types of transitional justice mechanisms are employed together, they improve human rights conditions and democracy measures.6

However, despite the literature supporting the use of transitional justice to promote justice and security in post-conflict societies, the ICC has not traditionally considered transitional justice mechanisms as part of a situation specific completion strategy and alternative to opening an investigation or pursuing prosecution. Section II of this comment discusses both how the Rome Statute’s Article 53 “interests of justice” admissibility requirement can and should be interpreted more broadly than the ICC interprets it, and also that transitional justice satisfies this broader interpretation.

Years often go by after the end of a conflict and before the ICC deems it safe to send investigators to collect evidence for cases. Thus, it is important for the OTP to consider that the needs of a situation may have changed in the time the country has spent rebuilding since the end of a conflict. There may be situations for which, at a certain point in their post-conflict rebuilding, transitional justice is more appropriate than criminal prosecution to deliver justice for the victims. Section III of this comment outlines a three-part factor test that the Prosecutor could use to determine whether transitional justice is a viable alternative to investigation and prosecution. This test would aid in avoiding the diversion of resources to investigations in cases where transitional justice is a viable alternative for delivering justice.

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II. Transitional Justice is in the “Interest of Justice”

Under the Rome Statute, the Prosecutor is afforded discretion to determine whether to initiate an investigation and pursue prosecution. Under Article 53(1) of the Rome Statute, the Prosecutor reserves the authority not to initiate an investigation where there are “substantial reasons to believe that an investigation would not serve the interests of justice.”7 Further, under Article 53(2) of the Rome Statute, after taking into account all the situation’s circumstances during the course of investigation, the Prosecutor may determine that prosecution is not “in the interests of justice.”8

Although “interests of justice” is not explicitly defined by the Rome Statute, the ICC has interpreted it relatively narrowly. In the OTP’s 2007 Policy Paper on the Interests of Justice (PPIJ), the ICC states that interests of justice “should not be conceived of so broadly as to embrace all issues related to peace and security.”9 Thus, the ICC has adopted a presumption that investigation and prosecution are in favor of the “interests of justice.”10 The ICC reaffirmed in its 2013 Policy Paper on Preliminary Examinations, that not proceeding with investigations and prosecutions would be “highly exceptional.”11 Thus, the ICC favors the traditional notion of prosecution and operates under the assumption that “justice” can only be delivered through criminal prosecution.12

The ICC’s narrow view of “interests of justice” extends to the OTP’s application of transitional justice. According to the OTP, transitional justice mechanisms not centered on “genuine” investigation and prosecution of responsible individuals, “in and of themselves, would not be capable of rendering a case inadmissible before the ICC.”13 Thus, the ICC does not consider transitional justice on its own without a criminal prosecution component, sufficient to suspend an investigation or prosecution in the “interests of justice.”

The ICC’s approach to transitional justice is evidenced by the OTP’s handling of the situation in Colombia. In 2004, the ICC opened a PE into Colombia for “alleged crimes against humanity and war crimes committed in the context of the armed conflict between and among government forces, paramilitary armed groups, and rebel armed groups.”14 In 2021, seventeen years later, the OTP announced it would be closing its PE into Colombia.15 Between 2004 and 2021, Colombia established the Special Jurisdiction for Peace (SJP), a truth and reconciliation commission, and opened investigations into the alleged perpetrators.16 However, the OTP credited only the “principle of complementarity of jurisdictions” as the reason for suspending its PE.17 The Prosecutor determined that “complementarity was working in Colombia through the combination of proceedings before the ordinary courts, the Justice and Peace Law Tribunals, and the Special Jurisdiction for Peace.”18 Thus, according to the OTP, the Rome Statute’s Article 17 complementarity provision was satisfied, not the “interests of justice” clause under Article 53 of the Rome Statute.19 This demonstrates the ICC’s current approach to transitional justice mechanisms: absent a predominant prosecutorial component, transitional justice mechanisms are not alone sufficient to suspend a PE or replace an investigation or prosecution in the “interests of justice.”

However, the language of the Rome Statute leaves room for a broader interpretation of “interests of justice” to include transitional justice. The inclusion of Articles 53(1)(c) and 53(2)(c) and the absence of a clear “interest of justice” definition, demonstrate that the meaning of “justice” may transcend criminal prosecution.20 Even the ICC’s PPIJ recognizes the possibility that:

[E]ven an individual deemed by the OTP to be among the ‘most responsible’ would not be prosecuted in the ‘interests of justice.’21

Therefore, it can be argued that the Rome Statute and the ICC anticipated possible situations in which the pursuit of criminal justice through investigation and prosecution would not be in the “interests of justice.”22

In the situations when criminal justice may jeopardize peace or stability of victims in a post-conflict society, there is an opportunity to consider transitional justice as a viable alternative to ICC investigation and prosecution. The ICC’s PPIJ says that when the OTP exercises authority under Rome Statute Articles 53(1)(c) and 53(2)(c), it “will naturally be guided by the objects and purposes of the Statute—namely the prevention of serious crimes of concern to the international community through ending impunity.”23 Under Article 68(1), the ICC and OTP have an obligation to “take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses.”24 Because transitional justice is centered around conflict resolution as opposed to punishment, it can encourage a beneficial forward-focused approach for victims that aids with healing from the conflict in a way that criminal prosecution cannot.

Transitional justice can provide a situation specific form of justice depending on the needs and desire of victims, whether it be through truth and reconciliation commissions or reparations. Conversely, a criminal prosecution may attempt to punish a few of the responsible perpetrators of the atrocity, but without necessarily remedying the trauma and devastation victims are left with post-conflict. Prosecutions may instead provide a false sense of justice, when in reality, victims are left no better off after a perpetrator’s prosecution and conviction than they were before.

It can be argued that, despite the ICC’s express presumption in favor of prosecution and investigation, its own policy papers have left open the possibility of utilizing transitional justice mechanisms not centered on criminal prosecution, to satisfy the “interests of justice” clause. In The Role of the ICC in the Transitional Justice Process in Colombia, the OTP acknowledged that “Transitional justice measures offer a broad scope of possibilities to ensure accountability for those most responsible for the gravest crimes.”25 According to the ICC, in order for transitional justice to achieve accountability, justice, and reconciliation, the transitional justice measures should include, “criminal justice, mechanisms for the establishment of the truth, reparations programs and a guarantee of non-recurrence.”26 Further, according to the PPIJ, “interests of justice” can be determined by weighing the following factors: gravity of the crime, interests of the victims, particular circumstances of the accused, other justice mechanisms, and peace processes.27 Under the “other justice mechanisms” section, the ICC acknowledges and “fully endorses” the complementary role truth seeking, reparations programs, institutional reform and traditional justice mechanisms can play in pursuing justice.28 Therefore, there is room to consider other factors without needing to weigh the criminal justice component so heavily.

III. Transitional Justice as a Substitute for Investigation or Prosecution

According to the 2020 Independent Expert Review (Expert Review) which evaluated the ICC’s practices and performance, the ICC is being stretched “too thin” and is opening situations with “limited feasibility.”29 Additionally, the Expert Review expressed concern about the OTP’s “lack of strategic considerations during decision-making” since case selection is “oftentimes made on the basis of ad hoc proposals from teams.”30 Part of the issue is that the criteria used by the Prosecutor to determine whether a PE should be opened is unclear and difficult to assess. Although in September 2016 the OTP indicated its intent to utilize a “case selection document” to aid with case selection, such a document has yet to be produced.31 Thus, there is an absence of situation specific planning from the beginning stages of case selection.32

The initial selection of situations occurs prior to the opening of a PE and is governed entirely by the Prosecutor’s discretion.33 During this initial phase, the OTP reviews Article 15 communications and determines which to classify as “Warranting Further Analysis” (WFA).34 The findings from this initial phase are then produced in Preliminary Examination Section (PES) Phase 1 reports and given to the Prosecutor to determine whether a PE should be opened.35 Between July 2002 and December 2019, the OTP received 14,167 communications, 715 of which were determined to be WFA.36 However, even though approximately 90% of PES Phase 1 reports were dismissed by the Prosecutor, according to the Expert Review, there were still too many situations before the OTP and insufficient funds to prosecute them.37

The Expert Review recommends that “completion strategies should be anticipated as early as possible and be on the agenda through the duration of an investigation.”38 However, neither the OTP nor the Rome Statute has laid out explicit criteria to determine whether a PE or investigation should be suspended. The OTP’s 2016 Policy Paper on Case Selection and Prioritization only states that case selection depends on “the assessment of the gravity of the crimes, degree of responsibility of the alleged perpetrators and the charges, with gravity being the predominant criterion.”39 Additionally, admissibility based on “interests of justice” is only considered once a PE is opened and, as discussed in Section II, the OTP favors investigation and prosecution without considering whether transitional justice would be a sufficient alternative.

Thus, two main issues with the ICC’s case selection process include:

  1. The admissibility assessment based on the “interests of justice” is currently done only after a PE is opened; and

  2. Transitional justice is not a heavily weighted admissibility consideration.

By limiting case selection to analysis of gravity of the crimes and favoring investigation and prosecution, the OTP is overlooking the way analyzing transitional justice may help create a situation specific completion strategy.

To determine whether transitional justice is a viable alternative to opening a PE or continuing a PE into a situation, the OTP should weigh the following factors: rule of law in the situation, sentiment among victims, and the available transitional justice mechanisms. The situation’s government has to be willing and capable of taking on a qualifying transitional justice mechanism. Thus, the factors rule of law and sentiment among witnesses, need to be considered to determine whether a situation is institutionally capable of adequately supporting transitional justice mechanisms.

These factors should be considered both at the PE phase and before the PE phase when information is being collected for the PES Phase 1 reports. Doing so could assist in reducing the number of PEs opened by giving the Prosecutor an opportunity early in the case selection process to determine whether transitional justice is a viable alternative to investigation and prosecution for a situation. Reasonably, in many cases, prior to opening a PE, it may be too early in the process of case selection for this to be determined. However, having the information from this framework available could guide a more situation specific completion strategy for cases that do move to the PE stage. For the cases that do move to the PE phase where more evidence is collected, these factors could be re-evaluated by the Prosecutor to determine whether a PE should continue to the investigation phase or whether transitional justice is a viable alternative.

A. Rule of Law

The World Justice Project defines the rule of law as a “durable system of laws, institutions, norms, and community commitment that delivers four universal principles: accountability, just law, open government, and accessible and impartial justice.”40 The 2010 U.N. Guidance Note said it’s important to “Coordinate transitional justice programmes with the broader rule of law initiatives.”41 For a situation’s government to be able to support a transitional justice mechanism, it needs to be able to insulate the mechanism to a certain degree from its government’s politics. Thus, for the purposes of this balancing test analysis, rule of law should be defined as having two components:

  1. ability to uphold legal order and stability; and

  2. ability to settle disputes before an independent body.42

Legal order and stability can be found in the international legal doctrine pacta sunt servanda.43 The International Court of Justice (ICJ) has said that the rule of pacta sunt servanda “is based in good faith” meaning states have a duty to “comply in good faith with legal obligations to which they have consented.”44 Thus, a government’s ability and commitment—whether demonstrated historically and/or post conflict—to uphold a level of stability within the country, is important for the successful implementation of a transitional justice mechanism. Such stability allows participants in the transitional justice process to have greater confidence in the possible achievement of peace and security.

Specifically, when doing an analysis under this rule of law component, several factors including the type of government in place and the levels of freedom civil society enjoys are relevant. Additionally, according to the World Justice Project Rule of Law Index (WJP Index), the degree to which civil conflict is effectively limited and the degree to which people in that society do not resort to violence to redress personal grievances can be considered under a rule of law analysis.45

Another component of rule of law is the settlement of disputes before an independent legal body. A single court does not need to settle all disputes. However, there should be a body somewhat insulated from government influence, like the SJP in Colombia. In order to determine whether an independent legal body would be able to settle disputes impartially and independently from government influence, it is important to look at the type of government in place—dictatorship, democracy, etc.—and the degree to which its power can be constrained. According to the WJP Index, whether government powers are subject to non-governmental checks and whether the transition of power is subject to the law, are two factors to be considered when evaluating the constraints on government powers.46

B. Witness Sentiment

Civil societies affected by conflict play a critical role in promoting and implementing transitional justice mechanisms. The U.N. 2010 Guidance Note stated that ensuring “the centrality of victims in the design and implementation of transitional justice processes and mechanisms” was key to a successful transitional justice approach.47 In particular, transitional justice may be optimal for “societies in transition that value peace more so than retribution.”48 Hearing from victims and understanding their perspective is key to understanding how they define justice and how they feel it should be delivered. For example, in the case of Colombia, prosecution “would have derailed the negotiations,” so “commitments to provide truth and reconciliation allow both parties to claim they have provided accountability mechanisms.”49 Additionally, to analyze witness sentiment toward prosecution or an alternative justice measure, the country’s cultural attitudes toward those approaches and how the country has historically approached criminal justice, should be considered.

C. Transitional Justice Mechanism

Once an analysis has been done concerning when a potential situation could support a transitional justice mechanism, the OTP should analyze whether a situation is in the process of implementing or has the desire to implement a bona fide transitional justice mechanism. Studies have shown that a single transitional justice mechanism on its own will not improve democracy or reduce human rights violations.50 However, a combination of trials or the threat of prosecution, amnesties, and truth commissions have been shown to produce positive results.51 Therefore, for the purpose of this analysis, a bona fide transitional justice mechanism must incorporate more than one mechanism.

A Truth and Reconciliation Commission (TRC) has been broadly defined as a body sanctioned by the state or international organization to investigate a series of human rights abuses.52 A TRC that operates under a threat of prosecution is an optimal mechanism that combines several of the elements needed for a bona fide transitional justice mechanism. Some have argued that TRCs transcend traditional legal retributive justice to provide “restorative justice,” a way of rehabilitating the relationship between victims and perpetrators through an expression of grievances and respect.53

As discussed in Section II, prosecutions do not need to be part of the mechanism for it to satisfy the “interests of justice” clause nor for it to be considered a bona fide mechanism under this approach. However, the complementary benefit of a threat of prosecution to a TRC should be noted. Prosecutions can contribute to:

[T]ransitional justice processes in several ways, such as providing recognition to victims as rights holders; establishing the trustworthiness of the legal system; reinforcing that perpetrators will be held accountable and that no one is above the law, thereby upholding the rule of law.54

Although criminal prosecution cannot in isolation achieve justice in a way that resonates with all the victims impacted by a mass atrocity, investigation and the threat of prosecution bolsters the effectiveness of truth and reconciliation commissions.55

IV. Conclusion

As a result of taking on too many cases without having a completion strategy, the ICC spends years in the preliminary examination and investigation phases. On average, a PE lasts about four to five years, more than double the time recommended by the Expert Review.56 In the case of Colombia, the Prosecutor spent seventeen years in the PE phase before closing the case without even moving to the investigation phase.57 Having such long running PEs is not only unsustainable, but it also negatively impacts the time and resources the ICC allocates to other PEs, investigations, and prosecutions, leaving victims frustrated as they wait years for justice to be served.

It is in the “interests of justice” for situations which demonstrate the capacity to implement a transitional justice mechanism as transitional justice is a viable alternative to investigation and prosecution. Specifically, three factors should be analyzed and weighed to determine whether transitional justice is a viable alternative to investigation or prosecution as a situation specific completion strategy: rule of law in the situation, sentiment among victims, and the available transitional justice mechanisms.

Whether or not this framework will significantly reduce the number of PEs that are opened or suspended, it will provide the OTP with a situation specific framework for the cases currently in the PE or investigation phases. By looking at the cases through this framework, it will help the Prosecutor determine whether prosecution is the most appropriate outcome for a given situation or whether transitional justice could provide a viable alternative.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    About the Court, Int’l Crim. Ct., available online (last visited Dec. 10, 2023); 31 Cases, Int’l Crim. Ct., available online (last visited Dec. 11, 2023). ↩

  2. 2.

    Library of Parliament, The International Criminal Court: History and Role 19 (Dec. 1, 2022), available online; Independent Expert Review of the International Criminal Court and the Rome Statute System Final Report 229, 232 (Sep. 30, 2020) [hereinafter Independent Expert Review], available online. ↩

  3. 3.

    Marieke de Hoon, The Future of the International Criminal Court: On Critique, Legalism and Strengthening the ICC’s Legitimacy, 17 Int’l Crim. L. Rev. 591, 594 (2017), available online. ↩

  4. 4.

    James Stewart, ICC Deputy Prosecutor, The Role of the ICC in the Transitional Justice Process in Colombia, ¶ 41 (May 2018), available online. ↩

  5. 5.

    Tricia D. Olsen, Leigh A. Payne & Andrew G. Reiter, Transitional Justice in Balance: Comparing Processes, Weighing Efficacy (Jun. 1, 2010), paywall. ↩

  6. 6.

    Tricia D. Olsen, Leigh A. Payne & Andrew G. Reiter, The Justice Balance: When Transitional Justice Improves Human Rights and Democracy, 32 Hum. Rts. Q. 980 (Nov. 2010) [hereinafter Justice Balance], paywall, archived, doi. ↩

  7. 7.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 53, available online. ↩

  8. 8.

    Id. ↩

  9. 9.

    Office of the Prosecutor, ICC, Policy Paper on the Interests of Justice 8 (Sep. 2007), available online, archived. ↩

  10. 10.

    Id. at 1; Luis Moreno Ocampo, War and Justice in the 21st Century 8, 17 (Nov. 18, 2022), paywall, partially archived. ↩

  11. 11.

    Office of the Prosecutor, ICC, Policy Paper on Preliminary Examinations 17 (Nov. 2013), available online, archived. ↩

  12. 12.

    Talita de Souza Dias, “Interests of Justice”: Defining the Scope of Prosecutorial Discretion in Article 53(1)(c) and (2)(c) of the Rome Statute of the International Criminal Court 732 (Apr. 26, 2017), paywall citing Thomas Hethe Clark, The Prosecutor of the International Criminal Court, Amnesties, and the “Interests of Justice”: Striking a Delicate Balance, 4 Wash. U. Global Stud. L. Rev. 389, 390 (Jan. 2005), available online, also citing Janine Natalya Clark, Peace, Justice and the International Criminal Court: Limitations and Possibilities, 9 J. Int’l Crim. Just. 521, 541–43 (2011), available online, doi. ↩

  13. 13.

    Stewart, supra note 4, at 5. ↩

  14. 14.

    Preliminary Examination: Colombia, Int’l Crim. Ct., available online (last visited Dec. 10, 2023). ↩

  15. 15.

    Juan Pappier & Elizabeth Evenson, ICC Starts Next Chapter in Colombia, But Will It Lead to Justice?, EJIL Talk (Dec. 15, 2021) [hereinafter Next Chapter in Colombia], available online. ↩

  16. 16.

    Moreno Ocampo, supra note 10, at 335. ↩

  17. 17.

    Stewart, supra note 4, at 6. ↩

  18. 18.

    Preliminary Examination: Colombia, supra note 14. ↩

  19. 19.

    Rome Statute, supra note 7, at Art. 17. ↩

  20. 20.

    Policy Paper on the Interests of Justice, supra note 9, at 8. ↩

  21. 21.

    Id. at 7. ↩

  22. 22.

    Id. at 8. ↩

  23. 23.

    Id. at 1. ↩

  24. 24.

    Rome Statute, supra note 7, at Art. 68. ↩

  25. 25.

    Stewart, supra note 4, ¶ 232; Id. at 4. ↩

  26. 26.

    Policy Paper on the Interests of Justice, supra note 9, at 4–8. ↩

  27. 27.

    Id. ↩

  28. 28.

    Id. at 8. ↩

  29. 29.

    Independent Expert Review, supra note 2, at 209. ↩

  30. 30.

    Id. at 220. ↩

  31. 31.

    Id. ↩

  32. 32.

    Id. at 239. ↩

  33. 33.

    Id. ↩

  34. 34.

    Id. at 207–08. ↩

  35. 35.

    Id. ↩

  36. 36.

    Id. at 207. ↩

  37. 37.

    Id. at 208–09. ↩

  38. 38.

    Id. at 223. ↩

  39. 39.

    Office of the Prosecutor, ICC, Policy Paper on Case Selection and Prioritisation 6 (Sep. 15, 2016), available online, archived. ↩

  40. 40.

    What Is the Rule of Law?, World Just. Proj., available online (last visited Dec. 12, 2023). ↩

  41. 41.

    Secretary-General of the United Nations, Guidance Note: United Nations Approach to Transitional Justice 2 (Mar. 2010) [hereinafter Guidance Note], available online. ↩

  42. 42.

    Robert McCorquodale, Defining the International Rule of Law: Defying Gravity?, 65 ICLQ 277, 303–04 (Apr. 2016), paywall, doi. ↩

  43. 43.

    Id. at 296, citing Hans Wehberg, Pacta Sunt Servanda, 53 Am. J. Int’l L. 775, 782 (Oct. 1959), paywall, doi. ↩

  44. 44.

    Nuclear Tests (New Zealand v. France), I.C.J., available online (last visited Dec. 12, 2023); McCorquodale, supra note 42, at 297. ↩

  45. 45.

    Order and Security, World Just. Proj., available online (last visited Dec. 13, 2023). ↩

  46. 46.

    Constraints on Government Powers, World Just. Proj., available online (last visited Dec. 12, 2023). ↩

  47. 47.

    Guidance Note, supra note 42, at 2. ↩

  48. 48.

    Yoav Kapshuk, Transitional Justice in the Israeli–Palestinian Negotiations: What Can Be Learned from the Colombian Case?, 14 JPD 73, 74 (2019), available online. ↩

  49. 49.

    Id. ↩

  50. 50.

    Justice Balance, supra note 6, at 996. ↩

  51. 51.

    Id. ↩

  52. 52.

    Id. at 992. ↩

  53. 53.

    Jennifer J. Llewellyn & Robert Howse, Justice for South Africa: Restorative Justice and the South African Truth and Reconciliation Commission, 49 UTLJ 355, 368 (1999), paywall. ↩

  54. 54.

    Guidance Note, supra note 42, at 4. ↩

  55. 55.

    Justice Balance, supra note 6, at 996. ↩

  56. 56.

    Id. at 232, 229. ↩

  57. 57.

    Next Chapter in Colombia, supra note 15. ↩

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