By Amin Sadri |firstname.lastname@example.org
In September 2007, the Office of the Prosecutor (OTP) for the International Criminal Court (ICC) set out its understanding of the concept of the interests of justice. The OTP made three points clear: there is a presumption to investigate and exercising the discretion not to do so is exceptional in nature, that the criteria are guided by the objects and purposes of the statute, and that the OTP is predominantly focused on the interests of justice and that the interests of peace “falls within the mandate of institutions other than the [OTP].” However, as the very first paragraph of their 2007 policy paper makes clear, “This is a policy document of the Office of the Prosecutor […] and is subject to revision based on experience and in the light of legal determinations by the Chambers of the Court.”
In no uncertain terms, the OTP’s policy stance places the interests of justice ahead of the interests of peace. Placing the law over peace is commonly legislated into many national legal systems, but those include a system of checks and balance between the prosecutor and the judiciary itself. The ICC does not have the same kinds of checks and balances any other judiciary might have, making the 2007 policy paper a dangerous precedent in the long run. With the tenth anniversary of this policy paper coming up, perhaps it is time the OTP reconsider what the interests of justice truly entail.
Justice Takes Time
The interests of justice are best served when justice is actually able to take place. Since its inception, the ICC and OTP have been criticised for not being able to investigate and prosecute individuals fast enough. Deterrence has three considerations: severity, certainty, and celerity. The Rome Conference dealt with the question of severity head on, choosing to adopt sentencing guidelines that are consistent with international criminal law norms.
However, the goals of certainty and celerity have remained far more elusive. For example, the preliminary investigation into alleged war crimes in Colombia has been ongoing since June 2004. The situation in Uganda has been ongoing since July 2004. It is possible that if investigations were opened for the 6,700 Rohingya Muslims killed during the month of December alone, the case might remain open for at least another decade. This is not a slight against the ICC or OTP at all, but a recognition that the work being undertaken must become far more concentrated in its efforts.
As the world community moves further into the 21st century, we must consider what role justice has in a world at the expense of peace. In Syria, years of civil war have been marked by incidences of the use of chemical weapons by the government against its own people. If the Assad government feels it has passed the point of no return, then its continued existence is on borrowed time, making it less likely it will go away quietly. Sadly, there is a point at which the cost of peace in the interests of justice is too high – a price which it is unfair to expect victims to pay. Realigning the interests of justice to better address the components of certainty and celerity would bring about worthwhile change. The answer appears to be a better system by which the OTP is able to triage the ongoing crises around the world.
Justice in the Way of Peace
Rethinking the approach the OTP takes to the interests of justice will only go so far unless the OTP is prepared to consider how the interests of justice have changed in the years since their original policy paper. As the Rome Statute makes clear, the OTP is given the ability to avoid pursuing cases when the interests of justice so require. The fear is that the accused can trade peace for prosecution, thereby paralyzing the court and leading to impunity. As has been pointed out, the prosecution of the Lord’s Resistance Army (LRA) both motivated the LRA to negotiate and possibly hindered final peace negotiations. Reading narrowly the times when an exception to investigation or prosecution should be invoked over the interests of justice assumes that the Court is not already hampered in its efforts to end impunity. If the cases against Kenyan President Uhuru Kenyatta and Deputy President William Ruto are indicators of anything, impunity is alive and well. This is not the fault of the OTP or the ICC, but an inescapable reality of international criminal prosecution that the accused often have greater influence in their nation.
Yet others would maintain that justice is a precursor to peace, serving as the bedrock to a stable nation. The examples of Charles Taylor, Radovan Karadžić, and Ratko Mladić being ostracised from political life following their indictments by international criminal tribunals are meant to serve as an example of justice helping aid peace. However, these were special courts with exclusive jurisdiction established by the UN Security Council and not prosecutions by the ICC. The narrow focus of those courts is completely unlike the ICC, whose focus ranges among nearly a dozen investigations while being limited by the principle of complementarity. Further, there is no Article 53 limit for the ICTY and the Special Court for Sierra Leone like there is for the ICC. While the OTP is tasked with “taking into account the gravity of the crime and the interests of victims,” the ICTY and other special courts were able to focus more on specific incidences. Prosecutorial discretion existed in both of those courts, but the OTP is specifically directed to take into account the interests of victims and the gravity of the crime when reaching their choice to investigate. Those systems were specifically designed with only justice in mind, while the Rome Statute requires the OTP to consider more than that.
Reconciliation in Colombia
Article 53 of the Rome Statute gives the OTP the tacit ability to maximise its effectiveness in insuring the interests of justice around the globe. By giving greater consideration to the interests of peace and focusing on the capacity building of domestic courts, the OTP and ICC could increase their effectiveness in deterring crime while prosecuting fewer cases at a faster rate. Currently, the OTP wishes to plug every leak by itself at once. However, the interests of justice will be better served if the OTP only focused on the largest leaks while teaching others how to stop leaks as well.
Following his stepping down as Chief Prosecutor for the ICC, Luis Moreno Ocampo explained in an interview that the best outcome for the ICC would be for it to have zero cases on its docket, meaning that such crimes as it would normally prosecute would either be things of the past or properly handled by national courts. Herein lies a truth: not all situations are created the same. For Colombia, their continued efforts for justice and peace are a marked improvement over the Colombia of yesteryear, making the ICC’s involvement that much less necessary. For the ICC to always place justice over peace means placing conflict over reconciliation, leading to an untenable result in the long run. Perhaps tomorrow is not the day for the OTP to change its position on the interests of peace and justice. However, the ICC’s current bent to place justice over peace puts it at odds with its own stated goals. In the end, the Court exists at the behest of nations who find peace to be not only a motivating factor, but of fundamental importance, meaning that sooner or later some changes in the system will have to be made.
Amin Sadri holds both his JD and LLM from Emory University School of Law, where he specialized in issues of international law and law and religion. Currently, he works as the Litigation Coordinator at the Restoring Religious Freedom Project at Emory Law. His area of expertise is on law and religion, American constitutional law, and international law.