A. Definition of Interest of Justice

The document outlines the principles guiding the ICC Prosecutor’s approach to investigating and prosecuting crimes within the Court’s jurisdiction. It emphasized the exceptional nature of stopping the investigating procedure by proving the continuation would not serve the interest of justice. Additionally, it’s quite clear that the Court is rather reluctant regarding the implementation of the interest of justice concept.

Firstly, exceptionality means that the OTP shall proceed with investigations or prosecutions unless doing so would be contrary to the interests of justice, an exception applied only under rare and specific circumstances. It’s a rigorous decision-making process, stressing that justice should not be compromised, even in conflicting situations, and should be considered alongside with peace efforts.

It’s quite evident that the Court is unwilling to apply the concept of not serving the interest of justice to reject the investigation of a case. There’s a presumption in favor of investigation or prosecution, reinforced by a global trend toward holding states accountable for international crimes. This normative shift is backed by the UN’s human rights principles, which obligate states to prosecute such crimes and thus contribute to the prevention of serious offenses and uphold international justice.

Lastly, when it comes to the purpose and objectives of the Court, it’s important to note that the Policy Paper has shown the ICC’s primary goal is to prosecute and prevent serious international crimes, to ensure justice, and to promote peace and global stability.14

Nevertheless, although the Policy Paper clarified that the interest of peace is not the ICC’s job,15 it also implicitly demonstrated that the ICC is willing to try to find a balance between the interest of justice and the interest of peace by allowing S.C. to defer ICC’s action if it’s considered necessary for the maintenance of international peace and security for a maximum period of 12 months; the request can be renewed under the same condition.16

B. Balancing Test

Firstly, the ICC’s procedural approach dictates that the “interests of justice” are considered only after it is determined that a case falls within the Court’s jurisdiction and meets admissibility criteria. In other words, it’s the Office of The Prosecutor (OTP)’s discretionary power not to initiate a case even if mandatory jurisdiction and admissibility requirements are potentially met.17

Secondly, the Policy Paper clarified that the OTP is not obliged to prove his action is in the interest of justice for the initiation of the case. This concept is applied only when the prosecutor does not want to pursue a case. In other words, if the prosecutor reasonably believes that despite the jurisdiction requirement and admissibility requirements being satisfied, the case still should not be initiated, then the prosecutor’s office must prove that the initiation of the case does not serve the interest of justice.18

The ICC’s protocol mandates that the “interests of justice” is a secondary consideration, activated only after jurisdiction and admissibility can be satisfied. Moreover, the concept primarily functions as a check against initiating actions, with its applicability being limited and specific to situations where the Prosecutor deems a case should not proceed, ensuring judicious use of this discretionary power.

C. Comparison Between Crucial Factors Outlined in the Policy Paper and the Prosecutor’s Request for Authorization

This section aims to do a comparative analysis between crucial factors for evaluating the “interest of justice” in the Policy Paper and how those factors are reflected by the judicial authorization request submitted by the OTP. Three main factors being discussed are: “gravity,” “interest of victims,” and “the particular circumstance of the accused.”

1. Factor One: Gravity

According to the Policy Paper, when considering the gravity of a crime, the OTP evaluates the scale, nature, manner of commission, and impact of the crimes.19 This involves examining how large-scale the crimes are, the specific types of crimes committed, how they were carried out, and their consequences. This comprehensive assessment ensures that the ICC prioritizes cases that are of serious concern to the international community, reflecting the principle that the Court should focus on the most severe crimes that challenge peace and security. The gravity criteria were met in the Afghanistan case by all mechanisms of the ICC. Specifically, the prosecutor’s request for PTC’s judicial approval,20 the PTC II,21 and the Appeals Chamber.22 The gravity element is emphasized by the alleged crimes committed by members of the Taliban and affiliated armed groups, members of the Afghan National Security Forces, and Members of the U.S. armed forces and the CIA.

The gravity in Afghanistan is defined by the Taliban and related groups’ acts, leading to over 50,000 civilian casualties for dismantling societal norms.23 The Afghan Security Forces’ systematic torture implies deep-seated brutality, causing severe harm to detainees.24 Similarly, the U.S. forces and CIA’s detainee mistreatment, involving cruel tactics and psychological damage, suggests grave rights violations.25 Together, these abuses by all involved parties paint a grim picture of the country’s human rights landscape.

2. Factor Two: Interest of Victims

In its Policy Paper, the ICC emphasizes its proactive approach to accessing the interests of victims by actively listening to their perspectives. Additionally, the Court is committed to gathering information from various parties to achieve as comprehensive an understanding as possible. The Court engages with victims, their families, and community representatives, as well as local and international organizations, to gain a multi-dimensional understanding of the victims’ interests. This includes considerations of their need for justice, safety, and healing.

This principle was indeed reflected in the Afghanistan situation. Prosecutor Bensouda has notified Afghan conflict victims about a potential investigation, respecting their right to address the PTC. The ICC’s victim-focused framework permits written submissions in its working languages. The process, both inclusive and voluntary, provides forms for victims’ input, emphasizing their active judicial role. The Chamber may request more details or conduct hearings. Should the case proceed, victims can partake in the proceedings and seek reparations, highlighting the ICC’s dedication to their involvement in justice processes.26

3. Factor Three: The Particular Circumstance of the Accused

The ICC’s policy also addressed that under certain circumstances, even those deemed most responsible may not be prosecuted if it’s not in the interests of justice, like in cases where the accused is terminally ill or has suffered serious rights violations. The Court believes that the personal circumstances of the accused are factored into the decision to prosecute as well.

III. Pre-trial Chamber II’s Rejection

A. The PTC’s Grounds in the Rejection

The Chamber maintains that there is a valid foundation to assert that the situation in Afghanistan falls under the jurisdiction of the ICC and that any possible cases would be eligible for consideration by the Court. Nevertheless, after assessing whether the Prosecutor’s start of proceedings would be beneficial for justice, the PTC has concluded that it would not. Concretely, the PTC holds the view that the prosecution is improbable to achieve success, and therefore, it would be more suitable to commit resources to other matters. Furthermore, the PTC has determined that conducting an inquiry would not satisfy the goals expressed by the victims in support of the probe, hence not aligning with the victims’ interests. This conclusion was drawn considering three factors: 1) The substantial duration since the initial examination commenced in 2006 and the subsequent political transformations in Afghanistan, 2) the restricted collaboration received by the OTP and the anticipation that it will further decrease, and 3) the need to allocate resources to investigations that have higher chances of achieving success. The following paragraphs delve more in depth regarding how the PTC’s arguments were addressed in the Rejection.

Initially, the PTC identified the duration and the political fluctuations as problematic. The PTC observed that the preliminary study of the situation in Afghanistan had been very prolonged, spanning about eleven years. During this prolonged time, Afghanistan experienced increased political instability and witnessed significant shifts in the overall political environment. The Chamber highlighted that such a long duration between the start of the preliminary examination and the filing of the request for investigation,27 coupled with the evolving political situation, could impact the feasibility and potential success of the investigation. During this time, the Prosecution faced challenges in preserving evidence and protecting witnesses,28 given the passage of time and the complexity of the political climate.29 These factors contribute to the assessment that an investigation at this point may not lead to successful prosecution or fulfill the expectations of the victims who favored the investigation.

Moreover, the PTC believes that the limited cooperation received by the OTP and the expectation that it will become even less forthcoming was considered to be a result of the complex and volatile political climate as well as the changes in the political landscape in Afghanistan and key states.30

Lastly, the chamber expressed the need to judiciously use its limited resources. It points out that the complexity of the alleged crimes in Afghanistan means that an investigation would be resource-intensive. Given these constraints, the Court suggests that it is essential to prioritize investigations that have a higher likelihood of success, to ensure the effective use of resources. Thus, the Court indicates a strategic approach to resource management, favoring cases with a greater chance of a positive outcome.31

In summary, the PTC acknowledges the ICC’s jurisdiction over Afghanistan’s case but deems that proceeding with an investigation does not serve the interests of justice. The decision is influenced by the long preliminary examination period, the expected reduction in cooperation, and the need to allocate limited resources to cases with a higher success potential. Therefore, the Chamber opts to focus on more viable cases, considering the challenges and resource constraints.

B. Comparative Analysis between the PTC’s Arguments and the Policy Paper

This section examines the PTC’s ruling on the Afghanistan inquiry in light of the ICC’s Policy Paper. The assessment of the Chamber’s conformity with the policy document is centered on evaluating the interests of justice, specifically after verifying the admissibility and jurisdiction of a matter. The analysis delves deeper into the Chamber’s departure from the Policy Paper by examining its consideration of victims’ interests, the probability of achieving successful prosecution, and the allocation of resources. The purpose of this comparison is to elucidate the reasoning behind the Chamber’s decisions and the consequences they have within the context of international criminal justice.

The only area in which the PTC’s opinion aligns with the Policy Paper is in its implementation of a balancing test. The Chamber’s approach is characterized by first ensuring that the admissibility and jurisdiction criteria are met before evaluating whether a case serves the objectives of justice. In other words, the Chamber adheres to the principle that the interests of justice should be evaluated only when a case can potentially meet the requirement for both the admissibility and jurisdiction criteria. This approach aligns with the Policy Paper’s framework, which implies that a thorough assessment of a case’s suitability for the Court’s intervention should be based on a holistic consideration, including legal prerequisites and broader justice-related factors. Thus, the PTC’s opinion demonstrates compliance with the Policy Paper in this specific aspect, ensuring that the fundamental legal requirements are satisfied before delving into the nuanced determination of whether pursuing a case aligns with the broader interests of justice.

However, the PTC’s stance on the interests of victims shows non-compliance with the approach conveyed in the Policy Paper. Despite the Chamber’s assertion that not pursuing the case would better serve the victims’ interests, this argument appears weak. The judges did not specify what they considered to be the victims’ interests, nor did they demonstrate efforts to actively listen to the victims’ opinions and gather information from various sources as required by the Policy Paper. Without conducting an investigation, it becomes challenging to ascertain whether the initiation of investigations aligns with or serves the interests of the victims.

Furthermore, the OTP issued the “Public Notice of the ICC Prosecutor,” a document aimed at comprehensively collecting and understanding the victims’ interests. However, due to the PTC’s rejection, this effort to gather information could not be realized. This inability to collect and understand the victims’ interests before making a decision is contrary to the objectives communicated in the Policy Paper, which emphasizes understanding the victims’ interests before concluding.

The PTC also indicated another reason for its decision: the low probability of successfully prosecuting cases in the situation in Afghanistan due to non-cooperation, thus necessitating the allocation of limited resources to cases with a higher likelihood of success. However, the Policy Paper does not mention the likelihood of successful prosecution or the limitation of resources as factors to consider. This rationale is a new consideration introduced by the judges in this specific case. The Policy Paper, focusing more on principles like victims’ interests and broader justice goals, does not explicitly address the pragmatic challenges of resource constraints or the probability of successful outcomes in its guidance, making this a distinct divergence in the PTC’s approach from the Policy Paper’s directives.

C. Lack of Uniformity in the Application

This section aims to point out the lack of consistent standards regarding the application of “interest of justice” as reflected by comparing the PTC’s opinion in the Afghanistan situation with the Georgia and Burundi cases, and the Kenya case. Such application reflects a lack of uniformity in its application.

In the Georgia and Burundi cases, the PTC concluded that an investigation would serve the interests of justice, primarily because the victims overwhelmingly supported initiating the investigation.32 This approach places significant emphasis on the interests of the victims, suggesting that their interests are paramount and should be “strictly limited to victims” when considering the interests of justice.33 Nevertheless, as explained in the previous section, because of the Rejection, the OTP’s effort in collecting more elaborate information regarding victims’ interests could not proceed. The Rejection thus does not conform with the idea indicated in the Georgia and Burundi case, which addressed that victims’ interests are paramount.

Additionally, in the Kenya case, even though the ICC faced similar issues of non-cooperation from relevant states and budget constraints as what happened in Afghanistan, the PTC declared that the cessation of the investigation was not related to these factors.34 However, the Rejection instead used the current and estimated non-cooperation of states as well as the budget constraints as grounds for not serving the interests of justice.

Therefore, by comparing the reasoning provided by the PTC chamber in rejecting the initiation of an investigation into Afghanistan’s situation in the name of “not serving the interest of justice,” the PTC made self-contradictory statements. Specifically, victims’ interest shall be crucial but not emphasized in the Rejection while budget constraints and non-cooperation neither align with the Kenya case nor the Policy Paper.

IV. Appeal Chamber’s Decision of Opening the Investigation

On March 5, 2020, the Appeals Chamber of the ICC overturned a previous decision by PTC II, allowing the Prosecutor to investigate alleged crimes in Afghanistan.35 Initially, the PTC had denied this request in April 2019, believing an investigation wouldn’t serve justice. However, the Prosecutor appealed, and the Appeals Chamber found that the PTC had incorrectly assessed the “interests of justice” in its decision making. The Appeals Chamber argued that the PTC should only consider whether there was enough factual basis for an investigation regarding crimes committed within the ICC’s jurisdiction.

The grounds of the Appeals Chamber provides certain insights for future references involving the “interests of justice.” These insights are twofold. Firstly, it shows alignments with the Policy Paper by identifying the PTC’s definition of “interests of justice” as inaccurate, which is a conclusion that can be drawn under the Policy Paper’s framework. Secondly, it offers a detailed interpretation of the procedural guidelines for applying Article 53(1).36 The following section of the text argues how the Appeals Chamber corroborates the views expressed in the Policy Paper and discusses the relevant materials that should be considered in the context of the “interests of justice.”

A. Definition of “Interest of Justice”

Firstly, the Appeals Chamber explicitly stated that Article 53(1) is “formulated negatively,”37 aligning with the viewpoint expressed in the Policy Paper. This means that the focus is on the circumstances under which “not serving the interests of justice” allows the OTP to refrain from initiating an investigation, even if jurisdiction requirements are fulfilled and admissibility could be met. The prosecutor is not obligated to demonstrate that a case serves the interests of justice when initiating a case.

Secondly, the Appeals Chamber deemed the PTC’s decision as unfounded, describing it as “cursory and speculative.”38 This aligns with the principles conveyed in the Policy Paper. The PTC’s considerations regarding “limited resource allocation,” “low likelihood of successful prosecution,” and “not in the victims’ interests” lacked evidence and substantive support, constituting weak arguments. Moreover, these factors were not mentioned in the Policy Paper, further underscoring their disconnect from established guidelines and principles.

Thirdly, the Appeals Chamber also believes that the PTC failed to consider the gravity of the crimes and the victims’ articulated interests, which is in line with the principles conveyed in the Policy Paper. The Policy Paper details that the scale, nature, and manner of commission of the crimes must be addressed when considering gravity. Regarding the victims’ interests, it suggests that articulations by the victims and opinions from multiple parties should be gathered for a comprehensive understanding of what constitutes the victims’ interests. The PTC did not demonstrate such effort and, due to its rejection, prevented the Prosecutor from further collecting the opinions of the victims.

In conclusion, the Appeals Chamber’s criticisms of the PTC are highly consistent with the concepts conveyed in the Policy Paper.

B. Procedural Implication

From the perspective of the Appeals Chamber, the focus of the PTC should have been solely on determining if there existed a sufficient factual foundation for the Prosecutor to initiate an investigation, specifically whether there were crimes committed and if the cases resulting from the investigation would likely be under the Court’s authority.39 The Appeals Chamber observed that the PTC’s decision included all essential factual determinations, affirming that there was a credible basis to believe that crimes falling under the jurisdiction of the ICC occurred in Afghanistan. This section aims to specifically explain how the Appeals Chamber (later abbreviated as AC) reached this conclusion.

Firstly, it is essential to clarify that the requirements for the OTP to assess the “interests of justice” differ when dealing with a state referral or an S.C.’s referral as opposed to proprio motu actions. In the former scenario, the OTP is obliged to evaluate whether there is “substantial reason to believe that an investigation would not serve the interests of justice.”40 Under Article 53(3),41 if the prosecutor decides not to investigate because it does not serve the interests of justice, such a decision requires the approval of the PTC.42 In this context, the PTC exercises judicial control over the prosecutor. It is noteworthy that this stipulates the need for approval when the prosecutor decides not to initiate an investigation, not when an investigation is to be launched, which does not require authorization by the PTC.

When it comes to proprio motu actions, such as in the situation of Afghanistan, the process differs. The prosecutor can determine whether there is a reasonable basis to initiate an investigation. If the decision is that there is no reasonable basis to proceed, the prosecutor only needs to inform the information provider under Article 15(6).43 This means that in cases where the prosecutor decides not to proceed, the PTC does not have the power of judicial review. However, it is important to note that to prevent the prosecutor from being able to “pursue frivolous or politically motivated investigations unchecked,”44 if the prosecutor decides to start an investigation, they are required to obtain authorization from the PTC.

To summarize, when a case is referred to the prosecutor, the prosecutor’s decision not to proceed requires the approval of the PTC. However, under proprio motu, the standard is the opposite; approval is needed when the prosecutor wishes to proceed with an investigation. Article 53(1)45 governs situations involving state and S.C.’s referrals, while Article 1546 governs cases under proprio motu. This section next discusses the specifics of the Afghanistan case, which was initiated under the standards of proprio motu, focusing on the requirements for information included in the prosecutor’s request.

The Appeal Chamber’s decision indicates that at the stage of seeking approval from the PTC to initiate an investigation, the prosecutor does not have the burden to support that the investigation will support the interest of justice. The Appeals Chamber emphasized that the information the Prosecutor must submit for authorization of an investigation can be of a “limited and very general nature.”47 Importantly, the Prosecutor is not obliged to provide reasoning justifying their conclusion regarding the interests of justice; only a factual description is mandatory.

The PTC holds authority for approval in cases initiated by proprio motu. However, at this stage, they do not have the authority to assess whether the interests of justice are met; their focus should solely be on the factual background to evaluate whether there is a reasonable basis to believe that the jurisdiction requirements are satisfied and admissibility could be met. If the PTC needs additional information to make a decision, they can seek it from the Prosecutor, rather than being confined to the content provided in the Prosecutor’s request.48

V. Conclusion

By interpreting and analyzing the Policy Paper, the Prosecutor’s Request for Authorization, the PTC’s Rejection, and the Appeal Chamber’s decision, this comment depicts how “interest of justice” was described both in theory (in its Policy Paper) and in practice by how it aligns with the determinations of the ICC Chambers. This comment primarily focuses on the Afghanistan situation because, uniquely, the commencement of the investigation there was initially rejected and then later resumed, giving us valuable insights into how the ICC views the “interest of justice” provision of the Rome Statute.

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

1. 1.

   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, as amended [hereinafter Rome Statute], Art. 51(c)(3), available online. ↩

2. 2.

   Press Release, ICC, ICC Judges Reject Opening of an Investigation Regarding Afghanistan Situation (Apr. 12, 2019) [hereinafter Afghanistan Rejection], available online. ↩

3. 3.

   Situation in the Islamic Republic of Afghanistan, ICC-02/17-138 OA4, Judgment on the appeal against the decision on the authorization of an investigation into the situation in the Islamic Republic of Afghanistan (ICC AC, Mar. 5, 2020) [hereinafter Afghanistan Appeal], available online. ↩

4. 4.

   Office of the Prosecutor, ICC, Policy Paper on the Interests of Justice (Sep. 2007) [hereinafter Policy Paper], available online. ↩

5. 5.

   Office of the Prosecutor, ICC, Situation in Afghanistan: Summary of the Prosecutor’s Request for Authorization of an Investigation Pursuant to Article 15, ¶¶ 33–34 (Nov. 20, 2017) [hereinafter Afghanistan Summary], available online. ↩

6. 6.

   Afghanistan Rejection, supra note 2. ↩

7. 7.

   Id. ↩

8. 8.

   Policy Paper, supra note 4. ↩

9. 9.

   Afghanistan Appeal, supra note 3. ↩

10. 10.

    Policy Paper, supra note 4. ↩

11. 11.

    Id. at 2–3. ↩

12. 12.

    Id. at 4. ↩

13. 13.

    Id. at 4–9. ↩

14. 14.

    Id. at 4. ↩

15. 15.

    Id. at 1. ↩

16. 16.

    Id. at 8. ↩

17. 17.

    Id. at 2. ↩

18. 18.

    Id. at 3. ↩

19. 19.

    Id. ↩

20. 20.

    Fatou Bensouda, ICC Prosecutor, Statement of Request for Judicial Authorization to Commence an Investigation into the Situation in the Islamic Republic of Afghanistan (Nov. 20, 2017), available online. ↩

21. 21.

    Afghanistan Rejection, supra note 2. ↩

22. 22.

    Afghanistan Appeal, supra note 3. ↩

23. 23.

    Afghanistan Summary, supra note 5. ↩

24. 24.

    Id. ¶¶ 37–38. ↩

25. 25.

    Id. ¶¶ 43–44. ↩

26. 26.

    Office of the Prosecutor, ICC, Public Notice of the ICC Prosecutor: Victims of Crimes Allegedly Committed in the Context of the Armed Conflict in Afghanistan Have Until 31 January 2018 to Make Representations to the ICC in the Hague (Nov. 20, 2017), available online. ↩

27. 27.

    Afghanistan Rejection, supra note 2, ¶ 92. ↩

28. 28.

    Id. ¶ 93. ↩

29. 29.

    Id. ¶ 94. ↩

30. 30.

    Id. ↩

31. 31.

    Id. ¶ 95. ↩

32. 32.

    Siti Rochmah Aga Desyana, Diajeng Wulan Christianti & Chloryne Trie Isana Dewi, Balancing the Interest of Justice: The Case of Afghanistan in the International Criminal Court, 8 PJIH 121 (2021), download, doi. ↩

33. 33.

    Id. at 132. ↩

34. 34.

    Id. ↩

35. 35.

    Afghanistan Appeal, supra note 3. ↩

36. 36.

    Rome Statute, supra note 1, at Art. 53(1)(c). ↩

37. 37.

    Afghanistan Appeal, supra note 3, ¶ 49. ↩

38. 38.

    Id. ↩

39. 39.

    Id. ↩

40. 40.

    Id. ¶ 28. ↩

41. 41.

    Rome Statute, supra note 1, at Art. 53(3). ↩

42. 42.

    Afghanistan Appeal, supra note 3, ¶ 29. ↩

43. 43.

    Id. ¶ 30. ↩

44. 44.

    Id. ¶ 32. ↩

45. 45.

    Rome Statute, supra note 1, at Art. 53(1). ↩

46. 46.

    Id. at Art. 15. ↩

47. 47.

    Afghanistan Appeal, supra note 3, ¶ 39. ↩

48. 48.

    Id. ¶ 48. ↩