Can the PTC Review the Interests of Justice?

Dov Jacobs has a typically excellent post at Spreading the Jam on the PTC’s decision to reject the Afghanistan investigation. I agree with nearly all of it, but I do take issue with this comment:

First of all, and perhaps most importantly, the exercise that the Pre-Trial Chamber did is most likely ultra vires. Indeed, Article 53(1)(c) is very clear that it is the Prosecutor who can decide to not open an investigation in the “interests of justice”. It is only if the Prosecutor makes such a decision, that a Pre-Trial Chamber can review it (Article 53(3)(b)). The only job of the PTC when the Prosecutor requests the opening of an investigation is to determine jurisdiction and admissibility. And the “interests of justice” fall under neither of these categories.

As I will explain in my next post, I completely reject the PTC’s approach to the “interests of justice” — for reasons Dov touches on. But I disagree with the idea that the PTC acted ultra vires by second-guessing the OTP’s belief that the interests of justice did not counsel against opening the Afghanistan investigation.

Let’s begin with the text of Art. 15 of the Rome Statute, which governs proprio motu investigations. Here are the relevant paragraphs:

3.         If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected. Victims may make representations to the Pre-Trial Chamber, in accordance with the Rules of Procedure and Evidence.

4.         If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case.

Paragraph 3 requires the OTP to have a reasonable basis to request authorization to investigate. Paragraph 4 then requires the PTC to do two things:

[1] Review the OTP’s belief that a reasonable basis exists.

[2] Determine that “the case” appears to fall within the jurisdiction of the Court.

Paragraph 4 is very poorly written. (Surprise!) It doesn’t make sense to refer to (1) and (2) separately, because the OTP’s reasonable-basis inquiry requires it to consider jurisdictional issues. So all Art. 15(4) really does is require the PTC to assess the OTP’s determination that a reasonable basis exists to open an investigation.

The OTP’s determination is governed by Art. 53(1) of the Rome Statute:

1.         The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute. In deciding whether to initiate an investigation, the Prosecutor shall consider whether:

(a)     The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed;

(b)     The case is or would be admissible under article 17; and

(c)     Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.

To find that a reasonable basis exists, in short, the OTP must consider (1) jurisdiction, (2) admissibility, and — critically — (3) interests of justice. If there is no jurisdiction or no admissibility, there is no reasonable basis to open an investigation. And even if there is jurisdiction and admissibility, there is still no reasonable basis to open an investigation if the interests of justice counsel against it.

As noted, Art. 15(4) requires the PTC to agree with the OTP that there is a reasonable basis to open an investigation. If the OTP is wrong about any of the relevant considerations — jurisdiction, admissibility, or interests of justice — the requisite reasonable basis does not exist. So I fail to see how the PTC could fulfil its mandate under Art. 15(4) unless it reviews not only jurisdiction and admissibility, but also the interests of justice.

To be clear,  I am not saying that the PTC’s essentially de novo review of the OTP’s reasonable-basis determination in the Afghanistan situation is warranted. Nor am I defending how the PTC understands the interests of justice themselves. On the contrary, as I will explain in my next post, I think the PTC’s approach to the interests of justice determination is completely indefensible. I am simply arguing that the PTC did not act ultra vires when it reviewed all three aspects of the OTP’s reasonable-basis determination — including the interests of justice.

Finally, unlike Dov, I don’t think it means anything that Art. 53 only mentions PTC review of the interests of justice when the OTP declines to open an investigation. As is well known, states agreed to give the OTP proprio motu power only because opening an investigation would require the PTC’s authorization. That check has little meaning if the PTC has no right to question the OTP’s belief that the interests of justice do not counsel against opening an investigation.

UPDATE: Dov and others have pointed out on Twitter that the PTC seems to have taken a different approach when considering the Kenya request, not reviewing the OTP’s interests of justice determination. I am not convinced that the decision suggests the PTC acts ultra vires if it engages in that review. But even if it does, the Afghanistan PTC is not bound by the Kenya PTC’s decision. So the real question is which decision is correct. For the reasons discussed above, I believe the Afghanistan PTC is correct on the narrow review issue.

UPDATE 2: It is important to note that the OTP itself believes the PTC has the authority to review its assessment of the interests of justice. It says the following in its Policy Paper on the Interests of Justice (p. 3): “The interpretation and application of the interests of justice test may lie in the first instance with the Prosecutor, but is subject to review and judicial determination by the Pre Trial Chamber.”