Part II – Panel Discussion on The Peacemaker’s Paradox: Pursuing Justice in the Shadow of Conflict

Prosecutorial Discretion & The Interests of Justice: what, when, how

In my previous post I reviewed Priscilla Hayner’s The Peacemaker’s Paradox: Pursuing Justice in the Shadow of Conflict, giving it a superb rating and recommending it to anyone working in the field of transitional justice – from mediators to civil society and human rights advocates. As I noted, Hayner draws from her wealth of experience and from her in-depth and critical examination of past efforts by various actors in the peacemaking and transitional justice chain, including international(ized) criminal tribunals and courts – most notably the International Criminal Court (ICC) – to see what has worked or failed in peacemaking. Presenting a clinical analysis of the what, how, and why of these past examples, Hayner shows that during peacemaking efforts, process matters, intrinsic to which are timing, strategy, and context. This is particularly relevant when the ICC Prosecutor exercises her authority: depending on the strategy and tactics adopted, she can be instrumental or detrimental to the peacemaking process.

As I noted in my previous post, a Book Launch and Panel Discussion was held in Amsterdam on 9 May 2018 as part of the Amsterdam Institute for Social Science Research (AISSR) Conflict, Security & Peacebuilding Speaker Series, co-organized by The Dialogue Advisory Group. Speakers included Priscilla Hayner (author of The Peacemaker’s Paradox and member of the UN Standby Team of Senior Mediation Advisors), ICC Deputy Prosecutor James Stewart, and Fleur Ravensbergen (Assistant Director at The Dialogue Advisory Group). Though various issues were tackled resulting in a lively exchange of views, I will focus solely on discretion and the interests of justice.

ICC Deputy Prosecutor James Stewart

Considering that The Peacemaker’s Paradox sets out to address the debate between peace and justice and considering that one of the panelists was ICC Deputy Prosecutor James Stewart, expectedly, issues concerning the ICC Office of the Prosecutor’s (OTP) use of discretion and the interests of justice were at the forefront of the presentations and Q & A. Regrettably, I found the comments and answers from Stewart wanting.

Hayner’s presentation was straight out of The Peacemaker’s Paradox. In her opinion, a conservative, nuanced approach should be taken when it comes to addressing issues of justice and accountability during the peacemaking process – especially during the early stages of the negotiations. She touched on the ICC Prosecutor’s discretionary authority and her obligations under the Rome Statute to consider the interests of justice, observing what she referred to as strategic timing and echoing her overarching theme in The Peacemaker’s Paradox: circumstances considering, there may be a need to hold off on discussing issues of justice at the outset of peace negotiations, recognizing that eventually these issues will be raised and addressed, at which point flexibility and creativity will be required. To this end, the OTP needs to be sensitive to ongoing peace processes.

Stewart picked up from where Hayner left off on prosecutorial discretion in the interests of justice, though from his opening lines, I kept thinking of the figure of speech attributed to Shakespeare’s Hamlet: methinks thou dost protest too much. Stewart went out of his way to say that the OTP has no political agenda, that it does not make decisions based on political considerations, and that were the OTP to permit political considerations to influence its mandate, it would mean the end of its legitimacy. Really?

Stewart was a bit shifty when discussing the essence of and the OTP’s policy on the interests of justice. I expected him to be reticent and ambiguous, but he could have been more substantive.

Before I go on, it may be useful to look at the relevant text of Article 53(1)(c), which requires (shall) the OTP to open an investigation where the evidence is sufficient, the Court has jurisdiction, and the case is otherwise admissible, unless: “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.”

Article 53(2)(c) further provides:

A prosecution 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….

Though the interests of justice is not defined, it is rather obvious (to me at least) what the drafters of the Rome Statute had in mind: the OTP should consider deferring taking action even when it clearly has jurisdiction and an obligation to act, if, under the circumstances, the greater good would be best served by not acting, rather than by acting. You may ask: whose interests? This question virtually answers itself. Look at the context and circumstances as your point of departure – the big picture. Reading between the lines, the drafters of the Rome Statute (and the States Parties who would eventually sign it and submit to the jurisdiction of the ICC) are effectively saying: Prosecutor, do no harm. Use common sense and be measured and context-driven, instead of being inflexibly justice-driven no matter the cost.

The OTP has issued two policy papers (see here and here and my post and my post on the OTP’s Policy Paper on Preliminary Examinations), trying to explain what this means and that only under highly exceptional circumstances will it rely on the interests of justice in delaying investigations and prosecutions. Legal scholars have also weighed in. Refreshingly, they take a pragmatic approach in interpreting what the drafters of the Rome Statute intended by including Article 53 (see Chapter 8 of The Peacemaker’s Paradox).

Stewart confirmed that the OTP has yet to invoke Article 53(1)(c) – officially that is. But this is a very narrow, if not misleading, way of interpreting the OTP’s actions.

It is a canard that the Prosecutor does not factor into her decision-making process any political considerations. Repeating this mantra over and over does not make it so – though by not formally invoking Article 53(1)(c), she has accorded her office plausible deniability.

Related imageMadam Fatou Bensouda needs a fig leaf to cover her actions, which, indisputably, are well within her discretionary authority – even though this is in contrast to some of her public remarks. For instance, in her 2013 piece in the New York Times, she wrote: “As the I.C.C. is an independent and judicial institution, it cannot take into consideration the interests of peace, which is in the mandate of other institutions, such as the United Nations Security Council.”

Perhaps this needs to be said publicly for the sake of perceptions (a naïve way of looking at things since it only fuels mistrust towards the ICC), but it hardly makes sense. In 2015 Madam Bensouda doubled down in a speech in Oslo: “Political considerations relating to peace and security … certainly do not and will never form part of the decision-making in the Office of the Prosecutor.”1   See Paul Dziatkowiec, Christian Buchhold, Jonathan Harlander, and Massimiliano Verri, Peacemaking in the New World Disorder, Oslo Forum Meeting Report (Geneva: Center for Humanitarian Dialogue, 2015), p. 25, http://www.hdcentre.org/wp-content/uploads/2016/06/Oslo-Forum-2015-Meeting-Report.pdf.

Madam Bensouda, with all due respect, you are embellishing.

Madam Bensouda’s decisions (and those of her office) are not made in a vacuum. Indeed, Hayner seems to have gotten a concession out of Madam Bensouda during a 2016 interview in which Madam Bensouda acknowledged: “Yes, we take into account the interest of peace…. We are sensitive to that: we are not spoilers. Our intervention should not aggravate the plight of victims.” (see The Peacemakers Paradox, p. 90) Bingo!

This admission or realization of how divisive and destructive her office can be to ongoing peace negotiations – were it to blindly (and callously) adopt non-contextual, inflexible, and sanctimonious postures when sensitive negotiations are underway that may yield both peace and justice – is an admission or realization of the importance of acting in the interests of justice (as Article 53(1)(c) invites her to do so by exercising her discretion). Stewart seemingly acknowledged this, but not before chanting, repeatedly, Madam Bensouda’s mantra that the OTP is independent and does not act on the basis of political considerations. It all depends on what the meaning of “is”, is.

One need only look at the OTP’s behavior – its calculated efforts in posturing through threats of action where it should have opened an investigation or gone ahead and completed its investigation, to see that in the letter and spirit of what Article 53(1)(c), it deferred or declined to investigate or proceed in a robust fashion in order to give the peacemakers a chance. Acting in the interests of justice.

Why the obfuscation? Would it not be better to be honest and transparent, so that the victims and other stakeholders and participants to the peacemaking process can wrap their heads around the OTP’s actions or inactions? Perhaps if the victims and their advocates knew the reasoning behind the OTP’s actions, they would be more inclined to accept the OTP’s inactions (or deferred actions).

Claiming that the OTP has never acted in the interests of justice within the letter and spirit of Article 53(1)(c) simply because the OTP did not invoke this article is like saying that since the US never officially declared war against Vietnam, it was never at war with Vietnam.

Stewart admitted that the OTP uses its discretionary authority in assessing admissibility. Without saying it, he implied that the OTP could, if it thinks it is in the interests of justice, refrain from opening an investigation through a finding of inadmissibility, effectively bypassing the need to invoke Article 53(1)(c). Too clever by half or a tacit admission?

Let’s face it, most decisions made by the OTP are discretion-based. This is inescapable. When any Prosecutor is exercising his or her discretion, is he or she not doing so in the interests of justice (though not in the sense set out in Article 53)? Though discretion and the interests of justice are different concepts, especially under the Rome Statute, they are also intrinsically linked.

When the OTP opts to take action in the affirmative sense (dismissing charges because they cannot be proved) or opts in the negative sense (declining to charge because the evidence suggests that a conviction is unlikely) it is exercising its discretions in a way that ensures the interests of justice. This is quite different than instances when the OTP, not wanting to destabilize a fragile peace process, may, in the interests of justice pursuant to Article 53(1)(c), abstain from investigating, charging or prosecuting individuals for crimes so as to not inadvertently cause the collapse of the peace process. Regardless of how and in what context one interprets the interests of justice, the OTP does in fact use its discretionary authority in refraining from taking action in accordance with the letter and spirit of Article 53(1)(c).

I will stop here. While I exceptionally profited from reading Priscilla Hayner’s The Peacemaker’s Paradox: Pursuing Justice in the Shadow of Conflict and from her insightful comments during the Book Launch and Panel Discussion, I found Stewart less accommodating and overly guarded. Perhaps had there been more time, and had Stewart been pressed to be more forthcoming, he might have been more generous. But then, considering the political environment in which the OTP functions, despite his protestations, in speaking at public events he must, I suppose, take into account the same sort of political considerations he claims the OTP refrains from considering when making decisions.

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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