As I have argued in the past, the “interests of justice” reference is not only a problem of content (i.e. of meaning in abstracto). It is also a problem of application (i.e. of meaning in concreto). This latter dimension pertains to the width and scope of the policy priorities and extra-legal considerations that the Prosecutor may take into account when exercising her discretion. The latest academic debate, triggered by the “creative ambiguity” of the language of Article 53 of the Rome Statute, illustrates the dynamic nature of this reference. In respect of its content, the PTC appears to suggest a different understanding from the one adopted by the OTP policy paper (see policy paper). Specifically, the PTC limits its potential content to effective and feasible investigations, based on a teleological interpretation of the Rome Statute. Additionally, and contrary to the negative phrasing of Article 53, the PTC adopts a positive conception when it suggests how an investigation would serve the interests of justice (para. 89). When it comes to the application of the interests of justice, the PTC once more departs from the OTP policy paper and recommends a number of novel factors that must be taken under consideration, such as the relevant time from the commission of crimes, the prospect of cooperation and the existence or not of evidence (para. 91).
As a general observation, I would dare to suggest that the PTC’s judicial initiative gives the impression of an attempt to address some aspects of the so called ‘backlash’ against the Court and the various critiques it has triggered due to its activity or inaction. However, this exercise oscillates between a series of false binaries, such as the role of law v. politics, idealism v. realism, faith v. critique, when reality is much more nuanced and perplexing. In this context, the PTC’s activism not only fails to open the path for the absolutely necessary discussion about the limits of international criminal justice and the interplay between law and politics, but additionally it renders the interests of justice reference obsolete.
I find the PTC’s decision unfortunate and unwise for a variety of reasons. First of all, it is well known that the interests of justice reference has due to its inderteminacy already triggered employment database suspicion and even hostility, as it is considered to be a political tool inside a legal instrument such as the Rome statute. On this note, the fact that the PTC chose to apply it for the very first time in the Afganistan situation, reasonably provides further grounds for critiques of politicization, neo-colonialism and hegemony. Phronesis requires the judges to exercise their judgment about the timing of their intervention, especially in a period where there are existential concerns about the future of the ICC. We all know that some kind of politics are inherently part of the judicial exercise; yet the main question is how this fine balance is exercised and what kind of ‘perception’ it produces. The unecessary application of the interests of justice in a very controversial situation does not indicate a wise assessment of its concequences.
Second, the importance of the interests of justice reference rests upon its elusiveness or else its indeterminacy. It is one of those concepts we cannot provide a clear answer about its content cause there is not a definite one. It is a matter of discretion. This prosecutorial discretion must be exercised with phronesis followed by wise judicial review. In our case, this judicial intervention lacks the necessary practical wisdom. The adoption by the PTC of an equally narrow content but towards a different direction than the OTP policy paper does not do any justice to the interests of justice. Phronesis requires consideration of the relevant activity by other judicial actors, especially in cases of high controversy. The OTP, being primarily entrusted with the analysis of the concept, had already produced its understanding and consistently reiterated it for the last twelve years. Contrary to that, the PTC’s decision appears to totally ignore the previous conceptual work of the OTP in an almost ‘authoritarian’ way and thus validates those voices of concern about an on-going judicial tendency to limit the width of prosecutorial discretion.