II. Article 53(1)(c) of the Rome Statute Leaves Room for Political Considerations in Deciding Whether to Proceed with a Formal Investigation

A. The Peace Versus Justice Dilemma, Approaches to Justice, and the ICC

The peace versus justice dilemma is a decades-old debate around how to best deal with perpetrators of violence as a society moves forward.10 Those who advocate for prosecution believe this debate is mostly fiction; they reason that holding perpetrators of atrocities accountable is an essential endeavor that deters future violence and contributes to long-term peace.11 Those in opposition argue justice can interfere with peace, and so leaving space for peace negotiations to occur, allowing amnesty in certain cases, and alternative forms of justice in lieu of prosecution for the sake of reconciliation is often the better method to help a society move forward from a violent past.12 The former argue that the latter approach leads to realpolitik, where political negotiations are favored at the expense of moral obligations, leading to widespread impunity.13 The latter argue that the approach of the former takes away the essential tool of amnesty, which they reason at times can be critical to moving a society past violence.14 These issues were brought to discussions in forming the Rome Statute, and ultimately, in light of these competing views, the final version of the Rome Statute did not expressly settle this argument, opting to leave room for discretion to confront this issue later.15 This discretion appears in Article 53, which provides the option for the Prosecutor to not investigate (or to cease investigation) if such investigation is not in the “interests of justice.”16 Thus this debate is brought into the context of the ICC, as what circumstances would make it not be in the “interests of justice” to prosecute?

One of the great philosophical pursuits has been attempting to define justice. Ultimately this pursuit continues, as a singular definition has not been reached, thus leading to different approaches to ensuring it in society.17 In the scope of western law, justice follows retributive principles, seeking to ensure justice through individual accountability; meeting wrongdoing with appropriate punishment for the wrongdoer and compensation to the wronged.18 The reasoning of this approach is parallel to that of the justice-first proponents of the peace versus justice debate: victims and society are benefitted by prosecuting and imposing sentences on perpetrators to deter future harm. Systems outside of western countries often align closer with restorative justice principles by focusing on societal goals of repairing harm rather than primarily individual accountability as a means of justice, leaving room for justice through alternative solutions such as truth commissions.19 Both of these approaches seek to provide fairness, and getting both victims and perpetrators what they are due, key principles of justice.20

The ICC follows western justice concepts by seeking to provide justice through prosecution of perpetrators and imposition of prison sentences where appropriate so that wrongdoers cannot commit further violence, future violence is deterred,21 and victims feel a sense of justice in that their suffering is addressed and they have the opportunity to participate in trial.22 The issue arises when investigation and prosecution lead to further violence,23 as this is incompatible with the previously stated goals of the endeavor: stopping the violence at issue, deterrence, and addressing victim suffering. Hence, the peace versus justice debate—with justice being defined in a primarily retributory sense—is brought to the ICC in the context of Article 53.

III. Interpreting the Interests of Justice: A Narrow or Broad Approach

Under Article 53(1)(c) the Prosecutor may opt not to initiate an investigation, if when “[t]aking into account the gravity of the crime and the interests of victims […] ” it appears there are “nonetheless substantial reasons to believe an investigation would not serve the interests of justice.”24 Under Article 53(2)(c), if a “[p]rosecution is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime,” the Prosecutor may conclude there is not “sufficient basis” for a prosecution.25 Upon making that conclusion, the Prosecutor must “inform the Pre-Trial Chamber and the State making a referral under Article 14 or the Security Council in a case under Article 13(b), of his or her conclusion and the reasons for the conclusion.”26 In both of these provisions, the “interests of justice” is used negatively, meaning the Prosecutor must find an investigation is not in the interests of justice as opposed to finding that it is.27 It has also been understood, by many scholars and the OTP itself, to create a presumption in favor of investigation (i.e., that an investigation is usually in the interests of justice), and thus is an “exceptional” measure.28

There is an understanding that spans both sides derived from context-based interpretation consistent with Article 31 of the Vienna Convention on the Law of Treaties (VCLT)29 that the word “nonetheless” in Article 53(1)(c) draws a distinction between the “interests of justice” determination and the prior determinations of jurisdiction and admissibility, rather than between the listed factors—gravity and interests of victims—from interests of justice, thus making gravity and interests of victims considerations of the interests of justice.30 The focus of the debate, therefore, is what factors the Prosecutor may consider outside of these. Article 53(2)(c) uses the phrase “taking into account all the circumstances including […] ” and continues to list the same factors with the addition of circumstances of the perpetrator, similarly, leading to a question of whether the Prosecutor is limited in consideration of relevant factors or given a broader discretion.31

Thus, largely two sides have emerged from this discussion—a narrow approach and a broad approach. The narrow approach interprets “interests of justice” as including the listed factors—and very closely related factors—in the article itself: gravity and interests of victims under 53(1)(c), and conditions about the perpetrator, specifically their age or infirmity, and their role in the alleged crime under 53(2)(c).32 This is the interpretation the OTP has officially taken as of their policy paper on the interests of justice released in 2007, which specifies that interests of justice might be informed by considerations of crime prevention or respect for international justice.33 Proponents of this understanding specify that for the more ambiguous factor “interests of victims,” such interests should be specifically related to justice,34 and have set forth having victims’ suffering publicly recognized, and seeing perpetrators punished as examples of such interests.35

The rationale for this approach is clear: amnesty for atrocity-level crimes would fail to deter and prevent future atrocities, and accountability is an essential component of peace.36 It follows then, that those who subscribe to this understanding therefore define justice primarily as it relates to prosecution of perpetrators of the crimes within jurisdiction of the ICC, and thus exclude peace negotiations and other political considerations as relevant considerations because these factors do not relate to prosecution. This also follows the side of the peace versus justice debate that argues without justice there cannot be peace.

The broad proponents argue that there is room for more discretion in making this determination. Their primary contention is that the “interests of justice” must allow considerations such as peace negotiations, because it would be irresponsible not to given the great potential to cause further harm.37 This rationale in part borrows from consequentialist ethics,38 in that it seeks to look ahead to the consequences of investigation and determine whether it will bring more violence and instability to the affected community.39

The case for a broader approach has been made in a variety of ways. Some authors rely on the varying philosophical approaches to justice that exist, and argue the existence of many definitions of justice supports a broader interpretation of justice within Articles 53(1)(c) and 53(2)(c).40 Other authors have relied primarily on the structure of the provisions, and make an argument attempting to balance the different goals and purposes of the Rome Statute.41 Further discrepancies between proponents include what broader factors may be considered, with some delineating several factors that would be appropriate to consider,42 while others reason the ambiguity leaves room for the phrase to be interpreted as broadly as necessary, relying on philosophical principles of justice and international law variations of justice as support.43 What the varying viewpoints share is an understanding that factors outside of those listed in Article 53 may be considered, typically including factors related to peace and security, and a normative argument that these considerations are important to make.

Both narrow and broad interpretations have legal backing. When interpreting the term in context, consistent with the requirements of Article 31 of the VCLT,44 the narrow proponents highlight the factors listed—interests of victims and gravity—in Articles 53(1)(c) and 53(2)(c) relate specifically to a crime, thus limiting the Prosecutor to solely these types of considerations.45 They further reason that the Rome Statute was created to ensure prosecution of perpetrators, supporting the notion that, in context, the interests of justice are limited to these named factors. Furthermore, a broader interpretation would allow more amnesties, in conflict with the goal of ending impunity; the Rome Statute Preamble expressly calls for punishment for the most heinous crimes.46 Finally, Article 16 allows the United Nations Security Council (S.C.) to defer an investigation for up to twelve months, which narrow-approach advocates argue wholly delegates consideration of peace and security interests to the S.C., not to the OTP.47

The broad proponents argue that the plain meaning in context of the term shows that the listed factors are merely examples of what should be considered in making the call. Within Article 53(2)(c), the plain meaning of the phrase “all the circumstances” indicates that the terms listed are examples of circumstances to consider, not a closed list.48 This, they argue, is supported by the fact that the provision is written because it acknowledges prosecution will not always be in the interests of justice, suggesting broader meaning than one purely related to traditional criminal justice.49 While the Rome Statute does expressly repudiate impunity, the Preamble subsequently goes on to state that this is to “contribute to the prevention of such crimes,” and recognizes earlier that such crimes “threaten the peace, security and well-being of the world.”50 The Preamble therefore indicates that prosecution of Rome Statute crimes is an important tool, but being employed to deter these crimes because of threat to peace. Thus, in the whole context of the Rome Statute, it can be (and has been) argued that a broader interpretation would be more in line with the goals of the Rome Statute and thus more accurate contextually.51

IV. The Case for an Instrumental Use of “Interests of Justice”

A. Distinguishing Between a Philosophical Approach and Instrumental Use

An instrumental use of Articles 53(1)(c) and 53(2)(c) would align closely with those on the broad approach side who argue the clauses can be invoked in situations where impact of increased prosecutorial action would be harmful. It would also have some similar legal backing and rationale to both previously outlined approaches but vary importantly in its application and basis. Those on both the broad and narrow approach who derive their interpretations of this term from a philosophical basis inherently attempt to define justice, which proves to be a fatal endeavor. They derive from what their sides’ rationale in the peace versus justice debate would be by reasoning that either justice requires accountability or that peace must sometimes come first, and find support in what they understand justice and ensuring justice to mean.52 If a philosophical approach is relied upon in interpreting the “interests of justice” then, as evidenced by the extensive debate that has yet to be resolved, consensus may never be reached as to what factors may be considered in the interests of justice, and therefore what situations it would be not in the interests of justice to prosecute.

On the other hand, an instrumental use of Articles 53(1)(c) and 53, allow the Prosecutor to invoke either of these provisions in circumstances which indicate the consequences of investigation and prosecution would cause detrimental harm.53 This approach would vary from the philosophy-based approaches in that, rather than seeking to define what considerations are or are not in the interests of justice based on varying definitions and structures of justice, the instrumental use would be invoked in fact-specific circumstances that prove an exception forgoing prosecutorial action is necessary to avoid further harm. This approach accepts the notion that the Rome Statute puts forth—that prosecution is generally the proper means for ensuring justice—but that where circumstances require, an exception is necessary. As discussed at a greater length below, the clauses’ exceptional nature provides a strong basis for an instrumental use of these provisions.

B. Support in International Law

An interesting area of international law that offers value to conceptualizing an instrumental use of Articles 53(1)(c) and 53(2)(c) are escape clauses found in international trade agreements. Escape clauses are provisions in treaties that allow a party to suspend their obligations without violating the treaty.54 The escape clause is a tool implemented into international trade treaties frequently due to the flexibility they provide where domestic uncertainty arises.55 Typically, such domestic uncertainty is caused by unanticipated political changes that cause a need or perceived need for increased protection of domestic producers.56 The rationale of an escape clause is to provide a temporary reprieve from obligations so that the treaty remains intact.57 The benefit is that countries are more likely to comply with the treaty requirements if they have the option to handle unexpected political uncertainty as they see necessary.58 An escape clause, in order to be effective, typically has a cost to ensure it is not overly utilized as a means for a party to escape its obligations to its own benefit while being able to maintain the reputation of being a compliant trade partner.59 It has been found that countries are more likely to agree to trade agreements containing this flexibility because of the assurance they will be able to prioritize domestic interests where necessary without violating the treaty.60

An instrumental use of Articles 53(1)(c) and 53(2)(c) would be similar in use and rationale. Like an escape clause, where political uncertainty makes a party’s ability to maintain their complementarity obligations with the Rome Statute impossible (without dramatic compromises of peace and stability), these provisions would be utilized by the Prosecutor to either opt not to investigate or to cease investigation. This would be a temporary reprieve from fulfilling all their obligations as the party would not leave the Rome Statute and would thus still be subject to ICC jurisdiction. The party would be enabled to protect their domestic interests of peace and security, comparable to how a party to an international trade agreement would protect their domestic production interests where necessary. The rationale is parallel: political uncertainty can make international agreements difficult to comply with, although one might wish to.

There are important key differences between escape clauses and an instrumental use of the “interests of justice” provisions that critics would be quick to point out. One important difference is that there would be no cost the breaching party would pay. However, the solution to this difference goes hand in hand with another key difference, which is that the Prosecutor, not the state party, would effectuate the escape clause. This makes it so state parties cannot utilize an escape clause merely to benefit their own political interests. There are of course risks of the Prosecutor being improperly influenced by powerful state parties to not investigate where they have political interest, however the Prosecutor is limited by two important checks: (1) the inherent exceptionality of the provisions themselves; and (2) the Prosecutor’s obligation to report a decision not to investigate on these grounds to the Pre-Trial Chamber.61 The Prosecutor also has an important stake in the legitimacy of the Court. Legitimacy is threatened when decisions appear to be politically based, so the Prosecutor is incentivized to be incredibly cautious as to not make decisions that appear to be politically influenced.62 This incentive, in tandem with the exceptional nature of the provisions, make it appear that the Prosecutor would be limited in applying the exceptions to only the most extreme circumstances, and even this action would be checked by the Pre-Trial Chamber. Thus, the issue of cost can be resolved.

Escape clauses are not exclusive to international trade law. International human rights treaties utilize escape clauses that give parties the option to cease compliance during times of political crisis.63 The escape clause employed is called a derogation, which allows temporary noncompliance to a certain extent during times of significant uncertainty, such as public emergency or war time.64 The rationale for including these provisions is similar to international trade escape clauses: they provide a “safety valve” for parties in situations of severe uncertainty to deal with pressures of noncompliance.65 Their use is limited by the aforementioned “certain extent,” as there are typically limits66 on the extent a party can utilize a derogation, an acknowledgement to the fact that governments may be more likely to take advantage of times of crises to suspend human rights.67

The escape clause thus traverses private and public international law for one overarching reason: in times of domestic uncertainty, government-parties require flexibility, albeit limited, to ensure important domestic interests are addressed where treaty compliance would significantly harm such interests. Atrocity-level violence requires the same limited flexibility; as broad-interpretation proponents argue, where investigation has significant risk to peace and security, investigation is not the best path forward.68 However, existing clauses with applicable rationale are not the only basis for an instrumental use of Articles 53(1)(c) and 53(2)(c); there is substantial support provided by the exceptional nature of the provisions, as well as a context-based analysis of the terms within the Article and the Rome Statute as a whole.

C. Structural and Interpretive Support for an Instrumental Use of Articles 53(1)(c) and 53(2)(c) as Exceptions

The primary support for an instrumental use of the “interests of justice” is its status as an exception. As discussed, where both sides often align in their interpretations is the exceptional nature of the Article, in that the negative structure of the “interests of justice” gives rise to the understanding that while investigation where there is jurisdiction and admissibility is the default, the Prosecutor can nevertheless opt not to proceed where it is not in the “interests of justice.”69 Exceptions are an essential component of law both domestically and internationally; relevantly here, they are found in abundance throughout international law.70 There are rules created by the various sources of law, including treaties, and then often grounds for exceptions to these rules, found when applying the rule to the situation at issue would be against the rule’s purpose, or where the reasons to not apply the rule are greater than the reasons to apply the rule.71 Why would reasons to not apply a rule exist? There are uncertainties that cannot always be predicted when one creates a rule.

Applying this logic to the Rome Statute, the rule created by Article 53 is that where a case fulfills the admissibility and jurisdictional requirements of the Rome Statute, the Prosecutor will open a formal investigation, as this is what justice under the Rome Statute requires. The exception is that despite fulfilling these requirements, the Prosecutor will not open a formal investigation, either because doing so would not be in line with the rule’s purpose, or there are more reasons to not apply the rule than to apply it, which would inherently include the risk of causing great harm. Adopting the aforementioned understanding of Article 53(1)(c)’s use of the term “nonetheless” operating to distinguish the “interests of justice” provision from the prior subsections on jurisdiction and admissibility lends support to this understanding. A reading of the provisions as exceptions to the rule of prosecution allows for considerations of domestic interests of peace and security, which would otherwise not be considered when deciding to prosecute. On their faces, Articles 53(1)(c) and 53(2)(c) are codified exceptions that leave room for flexibility in uncertain conditions which render prosecution unfavorable to the most closely involved parties.

Analysis of the terms consistent with Article 31 of the VCLT also lends support to the instrumental use. First, imperative to the instrumental use of the provision is that it operates as an exception to the norm of prosecution. As discussed in Part II, VCLT requires interpretation of the ordinary meaning of the term in context.72 The arguments broad-interpretation proponents put forth regarding the term “all the circumstances” support the assertion that the provisions enable the Prosecutor to consider political uncertainty when making a determination that the consequences of investigation would be too detrimental to proceed would involve consideration of political uncertainty, thus finding support in this phrasing. The negative structure of the “interests of justice” also supports an instrumental use of the provision: to find an investigation would not serve the interests of justice, one would have to look ahead to what effect an investigation would have and decide it is not in those interests. This lends itself to an instrumental use interpretation as utilization of the provision would thus mean the Prosecutor is acting to prevent an unfavorable outcome.

Further, while narrow-interpretation proponents put forth the reasonable argument that the “interests of justice” allowing impunity would be in conflict with the stated purpose of the Rome Statute, the purpose of the Rome Statute has been shown to be more complex than merely ending impunity: while the OTP has consistently maintained that the Rome Statute was created to end impunity, they have simultaneously asserted that it is to deter future crime, and that both of which are essential for social stability.73 Thus it appears that the two former principles act to support the latter, so when action would not contribute to social stability, and even may inhibit deterrence, interpreting the “interests of justice” provisions would not be wholly inconsistent with the Rome Statute’s purpose. This point is however ultimately irrelevant in that an exception, as discussed, leaves the purpose of a treaty “untouched,” so therefore no matter which purpose of the Rome Statute is adopted, an instrumental use of these Articles as exceptions does not act to “undermine” that purpose.74 Ultimately in interpreting exceptions, the VCLT provisions, while a good guidepost, are somewhat insufficient to fully understand an exception due to its specific operational nature and purpose.75 Therefore, while an instrumental use of the provisions is supported by VCLT interpretations, the exceptionary nature is the driving force supporting its adoption.

D. Risks and Tradeoffs

The instrumental use approach is not without shortcomings. While a prioritization of preventing drastic consequences would be in close alignment with many of the Rome Statute’s purposes—deterrence, peace and retribution—there would be inevitable tradeoffs to adopting this approach. Utilizing this exception to avoid detrimental consequences would not support the goal of ending impunity. Adoption of this approach would not harm the purpose of stopping impunity, as an exception leaves a treaty purpose untouched, however it would not be in furtherance of this goal as the exception only comes into consideration where a determination of admissibility has been made, indicating the duty to investigation and prosecute is not being fulfilled. The adoption of this approach also comes with risks to the Court’s reputation, as legitimacy is compromised when the Court seemingly engages in political considerations.76 However, the risks and tradeoffs are essential to the best interests of whom the Court ultimately supports: the victims and citizens of the world. Where intervention by the ICC will cause victims to be exposed to increased violence, or more victims to be created, the ICC has a duty to protect those parties and cease action. Furthermore, this approach does not attempt to argue that wherever the ICC predicts violent outlash the OTP opt out of investigation; the exceptionality of this provision cannot be overemphasized. Mass amnesty is not at risk because this will not be the rule, merely the exception.

In sum, because of their exceptional nature, an instrumental use of the “interests of justice” provisions is the most straightforward and supported interpretation. An instrumental use of the “interests of justice” provisions would allow their use to avoid creating an unfavorable situation where there is political uncertainty, protecting the interests of peace and security. This type of instrumental exception has been found across several bodies of international law, including escape clauses in international trade agreements and derogations in international human rights treaties, both of which exist because exceptions are necessary where there is uncertainty. Exceptions are typically found in law where circumstances show rule application would not be favorable, and here to find a situation unfavorable, the Prosecutor would have to look ahead to the consequences of investigation or prosecution to make that finding. Article 31 of the VCLT on treaty interpretation also supports an instrumental use, as the term itself, and the context, similarly to the broad proponent arguments, allow for a more expansive reading. However, ultimately it is the exceptional nature of the Articles that most strongly support this reading of the “interests of justice” provisions.

V. Instrumental Use of Article 53(1)(c) Exception in Practice

A. Background: Preliminary Investigation in Colombia, 2016 Peace Agreement and Decision not to Open a Formal Investigation

The preliminary examination in Colombia is an example of the OTP operating in such a manner that appears well reasoned, but simultaneously politically motivated. In 2004, then Prosecutor Luis Moreno-Ocampo opened a preliminary examination in Colombia based on communications the OTP had received regarding alleged crimes against humanity and war crimes amongst government forces, paramilitary groups, and guerilla groups.77 Colombia had been experiencing violence for over four decades at the time Prosecutor Moreno-Ocampo opened the preliminary examination.78 There had been attempts at peace negotiations between the Colombian government and the FARC—a prominent guerilla group—that had all failed by the time the preliminary examination was opened, until 2016, when the FARC and Colombian government signed a peace agreement called the Havana Agreement.79

The Havana Agreement established a unit called the Special Jurisdiction for Peace (SJP), whose focus would be justice for the crimes that occurred throughout the decades of violence, one responsibility being prosecution of the perpetrators of Rome Statute crimes.80 The Colombian government invited then Prosecutor Fatou Bensouda to submit an amicus curiae brief expressing views on the SJP and international criminal law responsibilities in relation to the ICC.81 The 2017 brief highlighted several areas of concern, notably one being the agreement’s definition of “command responsibility,” as a prerequisite to prosecution, which Prosecutor Bensouda argued made impunity more likely by imposing liability requirements of a higher standard than those in Article 28 of the Rome Statute.82 The Colombian government ultimately did not change their definition of command responsibility, and instead proceeded with the agreement as is.

The OTP did not act affirmatively in response to this, and instead shifted to monitoring the SJP’s progress to determine whether the duty to investigate and prosecute was being satisfied., finding in their 2019 report that progress had indeed been made.83 Finally, after several years of monitoring and engaging with the Colombian authorities, in October of 2021 current Prosecutor Karim A.A. Khan made the determination that Colombia was not “unwilling nor unable to genuinely investigate and prosecute Rome Statute crimes” and ended the examination, with the signing of a cooperation agreement between the Prosecutor and the government.84 Ultimately this decision has proved to be virtuous, with a positive response from the international community85 and from affected stakeholders in Colombia itself.86

The OTP did face criticism however, for its decision not to proceed with a formal investigation. First, the SJP utilizes special sanctions that are seen as lenient for their non-traditional approach to punishment; if a perpetrator of an international crime confesses early, engages in truth telling and commits to repairing harm done, the perpetrator will receive a non-custodial punishment that is activity-focused and restrains liberties.87 Critics regard this as insubstantial to meet Colombia’s burden to investigate and prosecute under the Rome Statute, and argue that the limited action by the SJP thus far indicates the transitional justice system may lead to impunity.88 Some have pointed out that the narrow definition of command responsibility’s direct conflict with Article 28 of the Rome Statute enabled the Prosecutor to open an investigation on the grounds that Colombia was unwilling to genuinely investigate or prosecute, and that the decision to not do so may have thus been politically influenced in an effort to maintain peace.89

B. Application of Instrumental Use Interpretation Retroactively Leads to the Same Outcome

Testing the instrumental use on this situation is promising because of the already-existing perception that the decision was possibly based on the interests of justice.90 A retroactive application of the instrumental use interpretation leads to the same outcome achieved by the Prosecutor’s decision. In other words, if a finding of unwillingness to genuinely prosecute due to command responsibility narrowing the pool of offenders in a manner inconsistent with the Rome Statute or leniency of the special sanctions was made, the Prosecutor nonetheless would have opted not to proceed with investigation because the circumstances in place indicated investigation would have caused detrimental harm to citizens.

The FARC were initially unwilling for any of their members to be prosecuted and serve prison sentences.91 This inherently created tension between compromising for peace and complying with the Rome Statute, which defines justice as the prosecution and sentencing of Rome Statute crime perpetrators.92 As addressed above, this tension carried over to the final agreement after four years of negotiations when the Colombian government refused to change some of their provisions seemingly in conflict with the Rome Statute’s. However, after fifty years of violence from this group in particular, the peace negotiations were essential and a priority for the most affected communities.93 And peace was not an easy thing to achieve, evidenced by the complex and lengthy Havana Agreement,94 so to secure a peace agreement compromise resulting in a form of justice not strictly complying with the Rome Statute was necessary.

If a finding of unwillingness were made at this point, either based on the inconsistent provisions or lenient sanctions, investigation would have very likely collapsed the hard-earned peace agreement, as this would have been directly against what the FARC sought to negotiate for.95 A collapse in the peace agreement would have led to more violence to the most affected communities, who were in highest support of the peace agreement to begin with. An instrumental use of the interests of justice would have prevented investigation if this finding were made in light of these detrimental consequences. Considering that other forms of justice were implemented in line with Colombia’s constitution, an exception to the rule of prosecution would not have delegitimized the ICC’s anti-impunity mission as the harms caused were not being ignored but brought to light through restorative justice measures.96 Support for this is evidenced by the Prosecutor’s decision not to act immediately and wait for the SJP to take action before deciding on the issue of willingness, as it seemingly took on at least some of these considerations.97

C. Application to Future Cases

While the instrumental use of the “interests of justice” is positively supported by the Situation in Colombia, future cases may not be so easy. Colombia was willing to engage in ongoing discussions with the ICC and take at least some of their advice into consideration; throughout the preliminary examination Colombia and the OTP were in close communications, with Colombia seeking the ICC’s input at various stages before and after the Havana Agreement.98 Other situations under ICC consideration may contain more barriers to compromise, especially where issues of ethnic hatred, political animosity, and global perspective are strong.

An example of where an application of the instrumental use of interests of justice would be more challenging is the Situation in the State of Palestine. Notably the decision to open investigation was highly controversial, with the issue of jurisdiction widely disputed.99 While world leaders were generally in agreement with the ICC’s involvement in Colombia, their involvement has received mixed, polarized responses from major political world leaders.100 The microscope that the Court is under in regard to this situation would make any decision that seemed politically influenced highly controversial, even where in the best interest of victims. Thus, if a genuine peace negotiation101 were arrived at with amnesty provisions for leaders on both sides, as this is likely the only way a peace negotiation could proceed, an instrumental use of the Article 53(2)(c) exception would be met with intense criticism, but likely praise as well.

The instrumental use here would more severely implicate some of the previously listed risks and tradeoffs to this approach. Allowing amnesty for Israeli or Hamas leaders would directly violate the Court’s goal of ending impunity in a major way. Amnesty for major leaders in this conflict would risk perpetuating the message that those in power can commit atrocity-level crimes without consequence, a message the ICC was created to refute. Furthermore, the legitimacy of the Court would be put at risk, as allowance of such amnesty in a hypothetical peace plan—of arguably those most responsible—would be a decision clearly influenced by the political uncertainty of the situation.

Important to remember however, is that the instrumental use is an exception to the rule, and one the Prosecutor has discretion to wield. Thus, the exception could or could not be invoked based on perceived likelihood of peace, victim priorities and satisfaction, plans for other forms of justice including retributive, restorative, and more.102 In making this call, consultation of the relevant stakeholders would be essential in order to make an accurate assessment, including victims, unaffected citizens, government leaders, and representatives of the judicial systems. If that consultation reveals leaving the peace negotiation alone would end the violence and lead to a better future for both parties, this author argues invoking the exception would be in the Prosecutor’s best interest. Although the decision would not go unchallenged—with the aforementioned risks of legitimacy and amnesty being inevitably implicated—the instrumental use calls for exception invocation where the consequences of investigation would be significantly detrimental. If the current investigation proceeded to prosecution despite the existence of a plan with sincere promise to bring much needed peace, the agreement would crumble. This would cause great harm to victims and civilians, as well as the Court’s reputation.

VI. Conclusion

The International Criminal Court has become central to the peace versus justice debate, as its dedication to prosecute perpetrators of Rome Statute crimes runs in conflict with the view that sometimes prosecution inhibits peace. This has led to debate over the ambiguous “interests of justice” phrase found in Articles 53(1)(c) and 53(2)(c), with those believing justice can sometimes inhibit peace arguing this provision leaves room for the Prosecutor to consider peace negotiations, leaning on the varying philosophical definitions of justice that have been adapted and ensured in numerous ways across the globe. Those who argue that there cannot be peace without justice assert the provision must be read narrowly, relying on their definition of justice within the prosecutorial lens and the Rome Statute’s important principle of stopping impunity. This comment has argued for an instrumental use of these clauses, leaning on the exceptional nature of their structure to establish their invocation only where investigation or prosecution would cause detrimental consequences. The instrumental use would be comparable to escape clauses in other international agreements that allow for a temporary departure of treaty obligations where political uncertainty makes compliance impossible. This instrumental use varies in its basis and rationale but takes from both sides of the debate. It aligns with the narrow view as it accepts that prosecution of perpetrators is the rule that should only be surpassed when it is critical. It aligns with the broad interpretation in that it would inherently involve a consideration of political factors such as peace negotiations and security interests.

A look at the former preliminary examination of the Situation in Colombia indicates that the result reached may have been influenced by the desire to allow the peace negotiations to remain sound. A retroactive application of the instrumental use of Article 53(1)(c) shows the same result would have been achieved, lending support to this perspective of possible political influence. Future situations may implicate the risks and tradeoffs of an instrumental use more severely, but this author has argued that it would still be the right choice. Ultimately the Prosecutor adopting a similar approach does not currently appear likely given the unwavering interpretation used since 2007, however this comment, at the very least, supports the notion that such an approach can be found in the Rome Statute, making it a possibility.

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

1. 1.

   International Criminal Court, Understanding the International Criminal Court (Mar. 12, 2021), available online; Press Release, ICC, ICC President Judge Philippe Kirsch Addresses the United Nations General Assembly (Oct. 31, 2008), available online; Council on Foreign Relations, The Role of the International Criminal Court (Dec. 14, 2015), available online. ↩

2. 2.

   Katharine A. Marshall, Prevention and Complementarity in the International Criminal Court: A Positive Approach, 17 Hum. Rts. Br. 21, 21 (2010), available online. ↩

3. 3.

   See generally Richard H. Steinberg, Politics and Justice at the International Criminal Court, 57 Israel L. Rev. 308 (Sep. 2024), available online, doi

   (discussing the many ways the ICC has appeared to act politically). ↩

4. 4.

   Marshall, supra note 2. ↩

5. 5.

   See e.g., Moreno-Ocampo: “I Follow Evidence, Not Politics”, IPI (Jan. 20, 2012), available online. ↩

6. 6.

   See e.g., Kenneth A. Rodman, Is Peace in the Interests of Justice? The Case for Broad Prosecutorial Discretion at the International Criminal Court, 22 Leiden J. Int’l L. 99 (Mar. 2009), paywall. ↩

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(1)(c) & 53(2)(c), available online. ↩

8. 8.

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

9. 9.

   See e.g., Rodman, supra note 6. ↩

10. 10.

    Kenneth A. Rodman, Peace Versus Justice, in Encyclopedia of Global Justice 824, 824 (Deen K. Chatterjee ed., 2011), paywall, doi. ↩

11. 11.

    Id. ↩

12. 12.

    Id. ↩

13. 13.

    M. Cherif Bassiouni, Justice and Peace: The Importance of Choosing Accountability Over Realpolitik, 35 Case W. Res. J. Int’l L. 191, 191 (Feb. 28, 2003), available online, archived. ↩

14. 14.

    Mahnoush H. Arsanjani, The International Criminal Court and National Amnesty Laws, 93 ASIL Proceedings 65, 66 (Mar. 26, 1999), paywall, doi. ↩

15. 15.

    Darryl Robinson, Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court, 14 EJIL 481, 483 (2003), available online. ↩

16. 16.

    Rome Statute, supra note 7. ↩

17. 17.

    See generally, Has the ICC Under-Represented Non-Western Legal Traditions?, ICC Forum (Jul. 25, 2022), available online

    (discussing how the ICC’s utilization of retributive justice by focusing on prosecution as the primary means of justice excludes non-western legal traditions that follow restorative justice principles). ↩

18. 18.

    See id. ↩

19. 19.

    See Eric Bram, Truth Commissions, Beyond Intractability (Jun. 2004), available online

    (highlighting various non-western nations where truth commissions have been held). ↩

20. 20.

    Manuel Velasquez, Claire Andre, Thomas Shanks, & Michael J. Meyer, Justice and Fairness, Markkula Center for Applied Ethics (Aug. 1, 2014), available online. ↩

21. 21.

    By the threat of prosecution. See Nick Grono & Anna de Courcy Wheeler, The Deterrent Effect of the ICC on the Commission of International Crimes by Government Leaders, International Crisis Group (Oct. 6, 2012), available online

    (discussing more on the disputed effectiveness of the threat of prosecution and subsequent imprisonment as a deterrent for future violence). ↩

22. 22.

    International Criminal Court, Victims Before the Court (Dec. 3, 2018), available online. ↩

23. 23.

    Grono, supra note 21

    (arguing in some cases the threat of ICC prosecution will lead to the perpetrator inflicting more violence). ↩

24. 24.

    Rome Statute, supra note 7, at Art. 53(1)(c). ↩

25. 25.

    Id. Art. 53(2)(c). ↩

26. 26.

    Id. ↩

27. 27.

    This understanding is one the OTP has adopted. See OTP Policy Paper, supra note 8. ↩

28. 28.

    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, 30 Leiden J. Int’l L. 731 (Sep. 2017), paywall, doi; OTP Policy Paper, supra note 8. ↩

29. 29.

    Vienna Convention on the Law of Treaties, Art. 31, May 23, 1969, 1155 U.N.T.S. 331, available online, archived. ↩

30. 30.

    In the interest of clarity, this comment focuses on the former understanding rather than the latter. See de Souza Dias, supra note 28

    (providing a more detailed application and discussion of Art. 31 of the Vienna Convention Treaty Law in interpreting Arts. 53(1)(c) and 53(2)(c)). ↩

31. 31.

    Id. at 739. ↩

32. 32.

    Human Rights Watch, The Meaning of “the Interests of Justice” in Article 53 of the Rome Statute (Jun. 1, 2005) [hereinafter HRW Policy Paper], available online; OTP Policy Paper, supra note 8. ↩

33. 33.

    OTP Policy Paper, supra note 8

    (acknowledging more considerations may be taken but that the provisions should “not be conceived of so broadly as to embrace all issues related to peace and security.”). ↩

34. 34.

    Defined by accountability via prosecution. See HRW Policy Paper, supra note 32

    (“The needs of victims for reparations, medical treatment or education may be quite real, but that does not mean that those are relevant factors for determining which cases the ICC should investigate or prosecute.”).

    See also Bassiouni, supra note 13, at 202

    (asserting that justice for victims is “justice that punishes those responsible and prevents the recurrence of such acts.”). ↩

35. 35.

    HRW Policy Paper, supra note 32. ↩

36. 36.

    Bassiouni, supra note 13, at 192. ↩

37. 37.

    Philippa Webb, The ICC Prosecutor’s Discretion Not to Proceed in the “Interests of Justice”, 50 Crim. L. Q. 305, 336 (Jan. 2005), available online

    (arguing that investigation during ongoing peace negotiations or a contentious domestic political situation could lead to further destabilization and thus “international peace and security concerns” should be considered as part of Art. 53’s interest of justice determinations). ↩

38. 38.

    Consequentialism, Stan. Encyclo. Phil. (Oct. 4, 2023), available online

    (defining consequentialist ethics as being based on the principle that an action’s rightness or wrongness is based purely on its consequences). ↩

39. 39.

    See Webb, supra note 37. ↩

40. 40.

    Brian D. Lepard, How Should the ICC Prosecutor Exercise His or Her Discretion? The Role of Fundamental Ethical Principles, 43 John Marshall L. Rev. 553, 565–66 (2010), available online

    (arguing an ethical approach to justice includes peace and human rights as essential components of justice). ↩

41. 41.

    See e.g., Robinson, supra note 15; Webb, supra note 37

    (putting forth an argument for enumerated considerations including peace and security concerns due to the need to balance the discretion provided by Art. 53 and the emphasis on the importance of prosecution). ↩

42. 42.

    E.g., Webb, supra note 37, at 346. ↩

43. 43.

    See e.g., Lepard, supra note 40; Giuseppe Cardone, Transitional Justice, Complementarity, and How the Colombian Case Affected the Notion of “Justice” Inside the ICC System, 5 Trento Student L. Rev. 162 (2023), available online

    (arguing that the existence of different systems of justice allows justice to take on multiple meanings). ↩

44. 44.

    Vienna Convention on Treaties, supra note 29, at Art. 31. ↩

45. 45.

    See Diego Acosta Arcarazo, Russell Buchan & Rene Urueña, Beyond Justice, Beyond Peace? Colombia, the Interests of Justice, and the Limits of International Criminal Law, 26 Crim. L. Forum 291, 311–12 (Mar. 3, 2015), paywall, doi

    (discussing how the nature of the factors listed in Art. 53 “limit[s] or qualif[ies] the term ‘all the circumstances’ ” so that only factors that specifically relate to the crime at issue may be considered). ↩

46. 46.

    Rome Statute, supra note 7, at Preamble; HRW Policy Paper, supra note 32. ↩

47. 47.

    See id.; Arcarazo, supra note 45. ↩

48. 48.

    See de Souza Dias, supra note 28. ↩

49. 49.

    See id. at 740. ↩

50. 50.

    Rome Statute, supra note 7, at Preamble. ↩

51. 51.

    See de Souza Dias, supra note 28, at 746. ↩

52. 52.

    E.g., HRW Policy Paper, supra note 32; Lepard, supra note 40; Webb, supra note 37, at 326

    (making the case for broader enumerated factors to consider in part relying on “public interest” as a means of interpreting interests of justice, in a similar manner to the restorative justice principles). ↩

53. 53.

    See Maria Varaki, Revisiting the “Interests of Justice” Policy Paper, 15 J. Int’l Crim. Just. 455 (Jul. 2017), paywall, doi

    (making a similar case for utilizing the “interests of justice” as a policy tool for the OTP to opt not to proceed by assessment of impact on the ground). ↩

54. 54.

    B. Peter Rosendorff & Helen V. Milner, The Optimal Design of International Trade Institutions: Uncertainty and Escape, 55 Int’l Org. 829, 830 (2001), paywall. ↩

55. 55.

    Id. ↩

56. 56.

    Id. at 832. ↩

57. 57.

    Id. at 833–34. ↩

58. 58.

    Id. ↩

59. 59.

    Id. at 831; Jonathan W. Kuyper, Designing Institutions for Global Democracy: Flexibility Through Escape Clauses and Sunset Provisions, 6 Ethics & Global Pol. 195, 199 (2013), available online, doi. ↩

60. 60.

    See Kuyper, supra note 59, at 201. ↩

61. 61.

    And the referring State or Security Council. Rome Statute, supra note 7, at Art. 53(2)(c). ↩

62. 62.

    Or otherwise expose him or herself to backlash. See Amnesty International, The ICC at 20: Double Standards Have no Place in International Justice (Jul. 1, 2022), available online

    (warning the Court’s silence on Palestine at the time and acceptance of funds from undisclosed parties open it to risk of political influence by powerful actors and criticism that it acts politically).

    Julian Elderfield, Uncertain Future for the ICC’s Investigation into the CIA Torture Program, Just Security (Nov. 12, 2021), available online

    (discussing Prosecutor Khan’s decision not to focus on U.S. torture allegations in Afghanistan despite their eligibility as one that diminished the OTP’s reputation of being independent and impartial). ↩

63. 63.

    Emilie M. Hafner-Burton, Laurence R. Helfer & Christopher J. Fariss, Emergency and Escape: Explaining Derogations from Human Rights Treaties, 65 Int’l Org. 673, 674 (Aug. 2011), available online, doi. ↩

64. 64.

    Lawrence R. Helfner, Rethinking Derogations from Human Rights Treaties, 115 Am. J. Int’l L. 20, 23 (2021), paywall, earlier version available online, doi. ↩

65. 65.

    Id. at 32. ↩

66. 66.

    See Hafner-Burton, Helfer & Fariss, supra note 63, at 677

    (discussing how there are limits on what human rights are derogable and the extent to which derogable rights may be suspended). ↩

67. 67.

    See Helfner, supra note 64, at 23

    (highlighting that derogations include limitations to “deter abuses”). ↩

68. 68.

    See Rodman, supra note 6, at 121. ↩

69. 69.

    de Souza Dias, supra note 28, at 746–47, 751; OTP Policy Paper, supra note 8, at 3. ↩

70. 70.

    Lorand Bartels & Frederica Paddeu eds., Exceptions in International Law (Jun. 18, 2020), paywall, doi. ↩

71. 71.

    Jaap Hage, Antonia Waltermann & Gustavo Arosemena, Exceptions in International Law, in Exceptions in International Law, id. at 11, 26–27, paywall, doi. ↩

72. 72.

    Vienna Convention on Treaties, supra note 29, at Art. 31. ↩

73. 73.

    Luis Moreno-Ocampo, Speech, “Building a Future on Peace and Justice” (Jun. 25, 2007), available online; Fatou Bensouda, ICC Prosecutor, Statement at Conclusion of Visit to the DRC (May 4, 2018), available online. ↩

74. 74.

    de Souza Dias, supra note 28, at 746–47. ↩

75. 75.

    Jorge E. Viñuales, Seven Ways of Escaping a Rule: Of Exceptions and Their Avatars in International Law, in Exceptions in International Law, supra note 70, at 81, paywall, doi. ↩

76. 76.

    See e.g., Michael J. Struett, Why the International Criminal Court Must Pretend to Ignore Politics, 26 Ethics & Int’l Aff. 83, 83 (2012), available online, doi. ↩

77. 77.

    Preliminary Examination, Colombia, ICC, available online (last visited Dec. 5, 2024). ↩

78. 78.

    Alejo Vargas Velásquez, Swisspeace, The Colombian Armed Conflict: Analysis and Perspectives, in Colombia: Conflict Analysis and Options for Peacebuilding Assessing Possibility for Further Swiss Contributions, 31 (2003), paywall. ↩

79. 79.

    Natalia Silva Santaularia, Colombia and the International Criminal Court: A Case of Positive Complementarity in Transitional Justice Contexts, in Transitional Justice, Distributive Justice, and Transformative Constitutionalism: Comparing Colombia and South Africa 440, 440 (David Bilchitz & Raisa Cachalia eds., Dec. 2023), paywall, doi. ↩

80. 80.

    Andrés Morales, The Rocky Road to Peace: Current Challenges at the Special Jurisdiction for Peace in Colombia, EJIL Talk (May 3, 2021), available online. ↩

81. 81.

    Office of the Prosecutor, ICC, Report on the Situation in Colombia (Nov. 30, 2023) [hereinafter OTP 2023 Colombia Report], available online. ↩

82. 82.

    Id.; Santaularia, supra note 79, at 449. ↩

83. 83.

    OTP 2023 Colombia Report, supra note 81. ↩

84. 84.

    Id. ↩

85. 85.

    Morales, supra note 80

    (discussing the success of the peace agreement in bringing an end to the conflict but acknowledging the challenges ahead). ↩

86. 86.

    Beatriz E. Mayans-Hermida, Barbora Holá & Catrien Bijleveld, Between Impunity and Justice? Exploring Stakeholders’ Perceptions of Colombia’s Special Sanctions (Sanciones Propias) for International Crimes, 17 IJTJ 192, 206–07 (May 19, 2023), available online, doi. ↩

87. 87.

    Id. at 194. ↩

88. 88.

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

    (discussing the SJP’s limited progress on crimes other than false killings).

    Luisa Mercado, Duque Pide Sanciones “Efectivas” para Miembros de Antiguas Farc, El Tiempo, Jan. 28, 2021, available online

    (quoting President Iván Duque who argues the perpetrators of crimes against humanity should receive harsh sanctions “proportional” to the charges they face).

    Press Release, FIDH, Colombia: Report Published by International Criminal Court Office of the Prosecutor on the Closure of the Preliminary Examination is Insufficient (May 12, 2023), available online

    (arguing the decision to close the preliminary examination was improper as it ignores the high impunity rates under the SJP). ↩

89. 89.

    See Santaularia, supra note 79, at 462

    (discussing how a decision to investigate in 2016 might have harmed the budding peace at the time).

    Santiago Vargas Niño, When a Preliminary Examination Closes, a New Era Opens: The OTP’s Innovative Support for Transitional Justice in Colombia, Opinio Juris (Feb. 12, 2021), available online

    (concluding that based on the OTP’s openness to the SJP’s special sanctions indicates an understanding of justice broader than punishment).

    FIDH, Crimes in Colombia: ICC to Reconsider Closure of Preliminary Examination (May 11, 2022), available online (asserting, upon closer examination, the Prosecutor’s decision was based on the interests of justice). ↩

90. 90.

    FIDH, supra note 88. ↩

91. 91.

    Annika Björkdahl & Louise Warvsten, Friction in Transitional Justice Processes: The Colombian Judicial System and the ICC, 15 IJTJ 636, 647 (Aug. 2, 2021), available online, doi. ↩

92. 92.

    See id. ↩

93. 93.

    See Regina Branton, Jacqueline Demeritt, Amalia Pulido & James Meernik, Violence, Voting & Peace: Explaining Public Support for the Peace Referendum in Colombia, 61 Electoral Stud. (Oct. 2019), paywall, doi

    (providing data that shows, while the peace agreement was initially voted against by a slight majority of Colombian citizens, the communities more heavily impacted by the violence were supportive of the Colombia peace referendum). ↩

94. 94.

    Id. ↩

95. 95.

    Santaularia, supra note 79, at 462. ↩

96. 96.

    See id. at 459

    (discussing the ICC’s apparent acceptance of Colombia’s broad use of justice through transitional justice measures focused on victim’s rights and resocialization of combatants rather than merely punishment through prison sentences). ↩

97. 97.

    Id. at 462. ↩

98. 98.

    See generally René Urueña, Prosecutorial Politics: The ICC’s Influence in Colombian Peace Processes, 2003–2017, 111 Am. J. Int’l L. 104 (2017), paywall, doi

    (providing a timeline of all the interactions between the OTP and Colombian government up until 2017).

    Santaularia, supra note 79

    (describing the OTP’s interactions with the Colombian government following the 2016 peace agreement). ↩

99. 99.

    See Situation in the State of Palestine, ICC, available online (last visited Dec. 5, 2024)

    (discussing the jurisdictional ruling arrived at by the ICC pre-trial chamber).

    George P. Fletcher, No Jurisdictional Basis for an Investigation Pursuant to the Palestinian Declaration, ICC Forum (Sep. 1, 2010), available online

    (arguing no jurisdictional basis exists for ICC intervention). ↩

100. 100.

     See Antony J. Blinken, Secretary of State, The United States Opposes the ICC Investigation into the Palestinian Situation (Mar. 3, 2021), available online

     (opposing the OTP’s decision to investigate).

     Joe Biden, U.S. President, Statements on Warrants Issued by the International Criminal Court (Nov. 21, 2024), available online

     (calling the issuance of arrest warrants for Israeli leaders “outrageous”).

     but see UK Indicates It Could Arrest Netanyahu on ICC Warrant, as Hungary Invites Him to Visit, Times of Israel, Nov. 22, 2024, available online

     (arguing UK Prime Minister Keir Starmer’s statement that the “UK will always comply with its legal obligations as set out by domestic law and indeed international law” indicates the UK would arrest Prime Minister Benjamin Netanyahu). ↩

101. 101.

     This is purely hypothetical. Given the current nature of the situation and intense animosity present on both sides, a genuine peace negotiation to the satisfaction of both sides is unlikely to happen anytime soon. See e.g., Nathan J. Brown, Israeli and Palestinian Societies Have Little Remaining Hope of Peace, Carnegie Endowment (Oct. 16, 2024), available online

     (discussing the reasons both Israelis and Palestinians have little hope for peace). ↩

102. 102.

     See Robinson, supra note 15, at 495–98.

     (discussing the circumstances that may warrant amnesty for those most responsible and how a very close assessment of those circumstances would be required before forgoing investigation on the interests of justice). ↩