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‘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

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Abstract

The International Criminal Court (ICC) was established with the aim of prosecuting individuals for the gravest crimes of concern to the international community. Yet some provisions of its Statute (the Rome Statute) recognize the need for temporarily setting aside criminal investigations or prosecutions in favour of different considerations. Two of these provisions are Article 53(1)(c) and (2)(c) of the Statute. They allow the Prosecutor of the Court to use his or her discretion in deciding not to initiate an investigation or a prosecution in the ‘interests of justice’. Nonetheless, the ambiguity of this phrase, coupled with an absent definition, have given rise to a polarized debate about its meaning and the Prosecutor's ensuing margin of discretion: some consider matters of peace and security and alternative justice mechanisms as possible ‘interests of justice’, while others exclude them. Among those adopting the latter view is the ICC's Office of the Prosecutor (OTP), as can be inferred from a 2007 Policy Paper on the Interests of Justice and a 2013 Policy Paper on Preliminary Examinations, which continue to be upheld by the Office. Against this backdrop and amid new developments at the ICC which call into question the OTP's position, the purpose of this article is to develop a comprehensive interpretation of Article 53(1)(c) and (2)(c) of the Rome Statute, using all the interpretative tools provided by Articles 31 to 33 of the Vienna Convention on the Law of Treaties.

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D. Robinson , ‘Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court’, (2003) 14 EJIL 481

K.A. Rodman , ‘Is Peace in the Interests of Justice? The Case for Broad Prosecutorial Discretion at the International Criminal Court’, (2009) 22 LJIL 99

D. Ðukic , ‘Transitional justice and the International Criminal Court – in “the interests of justice”?’, (2007) 89 International Review of the Red Cross 691, at 716.

O. Dörr and K. Schmalenbach (eds.), Vienna Conventionon the Law of Treaties (2012)

O. Corten and E. Klein (eds.), The Vienna Conventions on the Law of Treaties: A Commentary (2011)

H. Hafner et al., ‘A Response to the American View as Presented by Ruth Wedgewood’, (1999) 10 EJIL 108

B. Wringe , ‘Why Punish War Crimes? Victor's Justice and Expressive Justifications of Punishment’, (2006) 25 Springer's Law and Philosophy 159, at 159–60

D. Jacobs , ‘A Samson at the International Criminal Court: The Powers of the Prosecutor at the Pre-Trial Phase’, (2007) 6 Law and Practice of International Courts and Tribunals 317

M. Valiña , ‘Interpreting complementarity and interests of justice in the presence of restorative-based alternative forms of justice’, in C. Stahn and L. Van den Herik (eds.), Future Perspectives of International Criminal Justice (2010)

J. Gavron , ‘Amnesties in the Light of Developments in International Law and the Establishment of the International Criminal Court’, (2002) 51 ICLQ 91

R. Wedgwood , ‘The International Criminal Court: a American view’, (1999) 10 EJIL 93, at 97

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Leiden Journal of International Law
  • ISSN: 0922-1565
  • EISSN: 1478-9698
  • URL: /core/journals/leiden-journal-of-international-law
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