The Fears of Politicisation and the PTC gatekeeping function

Concerned by the dilemmas detailed above, the drafters of the Statute included within the Court’s architecture an additional judicial section, the Pre-Trial Division, conceived as a stronghold to protect the Court against the dangers of politicisation. The PTC was devised as the organ in charge of overseeing and controlling the Prosecutor’s exercise of discretion, aimed at preventing abuse of power and shielding the Prosecutor from external pressures.41 Judicial review of the Prosecutor’s discretion was recognised as having the potential to diminish ‘the risk of politically motivated investigations as a result of abuse of political discretion by the Prosecutor’.42 The PTC was meant to act as a ‘bulwark against “politicisation”’.43 _{The different PTCs have also understood their role to be that}

of ‘prevent[ing] the Court from proceeding with unwarranted, frivolous, or politically motivated investigations that could have a negative effect on its credibility’,44 _{and ‘providing a judicial safeguard against frivolous or politically-}

motivated charges’.45 However, the exact meaning of the term ‘politicisation’, which the drafters wanted to avoid, still remains a matter of uncertainty.

41 _{Silvia A. Fernández de Gurmendi, ‘The Role of the International Prosecutor’ in Roy S. Lee (ed),}

The International Criminal Court The making of the Rome Statute Issues, Negotiations, Results

(Kluwer Law International 1999) 183-184.

42 _{(n 24) Olásolo 104.}

43 _{William A. Schabas, ‘The Short Arm of International Criminal Law’ in William A. Schabas,}

Yvonne McDermontt and Niamh Hayes (eds), The Ashgate Research Companion to International

Criminal Law Critical Perspectives (Ashgate 2013) 397.

44 _{Situation in the Republic of Kenya, ICC-01/09-19-Corr Decision Pursuant to Article 15 of the}

Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya Pre-Trial Chamber II, 31 March 2010 para. 32.

45 _{Situation in the Republic of Côte d'Ivoire, ICC-02/11-15-Corr Corrigendum to 'Judge Fernández}

de Gurmendi's separate and partially dissenting opinion to the Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d'Ivoire' Pre-Trial Chamber III, 5 October 2011 para. 16.

It is commonplace amongst members of the legal profession, most of us (if not all) trained as positivist lawyers, to defend a ‘strictly legalistic’ approach to judicial work in general. For the majority, to suggest that politics may play a role in criminal trials appears ‘equivalent to questioning the integrity of the courts, the morals of the legal profession’.46 The same view, of an ‘apolitical’ Court,47 _{extends to the ICC. As will be discussed in the following Chapters, the}

‘legalistic’ approach to the role of the Court is deeply rooted in the general understanding of its function. Under this perspective, the Prosecutor’s discretion and the PTC’s supervisory role should be strictly ‘technical’ and guided by ‘uniform’, ‘legal’ criteria.

It seems however rather artificial to approach the role of the ICC, or that of any organ of the Court, from the perspective of ‘law in a vacuum’. Such a view would appear to affirm the ideological posture that ‘politics’ and ‘law’ can be completely isolated from each other, because they are autonomous spheres of reality. However, particularly within the context of the Court, it is hard to argue that ‘law’ is absolutely autonomous from ‘politics’. If Judith Shklar had lived to witness the establishment of the ICC, she would have probably argued that the creation of the Court represents a new legalistic attempt at judicialisation of a political process, in accordance with the idea that political issues ought to be solved by court-like procedures.48 _{She described the legalistic program in}

international law as that where the aim was that all politics must be assimilated to the paradigm of just action: the judicial process.49 A process in which ‘politics’ itself becomes a word of scorn, an ideological anarchy hardly distinguished from uncontrolled physical violence, or ‘pure chaos that reigns’.50 Thus, in her view, for the legalists, and to a certain extent traditional legal thought in general,51 in order to maintain the opposition between ‘legal order’ and ‘political chaos’, it is not only necessary to define ‘law’ out of ‘politics’, but

46 _{Otto Kirchheimer, Political Justice. The Use of Legal Procedure for Political Ends (Princeton}

University Press 1961) 47.

47 _{An ideal shared by many commentators as noted by Alexander K.A. Greenawalt, ‘Justice}

Without Politics: Prosecutorial Discretion and the International Criminal Court’ [2007] NYUJInt'l L & Pol 583, 612.

48 _{Judith N. Shklar, Legalism. Law, Morals and Political Trials (Harvard University Press 1964)}

117-118.

49 _{Ibid 122.} 50 _Ibid. 51 _{Ibid 123.}

further necessary to ‘subdue this irrational political world’ by ‘a policy of uncompromising rules and rule following’.52

Some would argue that ‘law’ should indeed preserve its autonomy from ‘politics’, because politics is in fact not part and parcel of justice but rather of the realm of ‘power’, which is determined by war or ‘active or potential physical violence’.53 _{However, even if one accepts such a narrow understanding}

of the term ‘politics’, how can the rules of the Court – which was created precisely to deal with the consequences of war and violence – magically lift themselves above and beyond politics?54 Has international law eventually managed not only to regulate politics but also to replace it altogether?55 Or have we rather succumbed to the ‘intellectual fantasy’ of the replacement of politics by law as the solution to all the problems of international conflict?56

The problem lies, as Greenawalt stresses, in the imprecision in the use of the terms ‘politicisation’, ‘politics’ and ‘political’.57 _{As noted by Shklar, ‘[t]he}

answer, of course, is that there is politics and politics’.58 Within the context of the Court, certain political considerations are indeed illegal by definition and should play no role in the Court’s decision-making. An illegal political consideration would be, for example, the fact that a government involved in the commission of crimes has a friendly relationship with or economic ties to a permanent member of the UNSC.59 _{However, the proscription against}

‘politicisation’ does not debar certain other extra-legal considerations, which are not concerned with illicit motives and may legitimately inform the proper exercise of the Prosecutor’s discretion.60 _{These would include, for example, a}

policy decision to focus on ‘those who bear the greatest responsibility’,61 understood as meaning exclusively the highest in command, or that of

52 _{Ibid 122.}

53 _{As defined by the realists according to Shklar, ibid 125.} 54 _{Ibid 122.} 55 _{Ibid 130.} 56 _{Ibid 139.} 57 _{(n 47) Greenawalt 613.} 58 _{(n 48) Shklar 143.} 59 _{(n 47) Greenawalt 613.} 60 _Ibid.

61 _{OTP, Paper on some policy issues before the Office of the Prosecutor (International Criminal}

‘prosecuting lower level perpetrators where their conduct has been particularly grave and has acquired extensive notoriety’.62

Accordingly, in order to ensure that the Prosecutor’s decisions are a legitimate exercise of his powers under the Statute and are not arbitrary or the result of improper political influence that may lead to the Court’s ‘politicisation’, the PTC is tasked with the judicial scrutiny of the Prosecutor’s exercise of discretion. The PTC’s function should further contribute to the Court’s impartiality and independence – which are essential for its credibility and legitimacy – and serve to protect the rights of those affected by the Court’s investigations and prosecutions.

This is what will be referred to herein as the ‘gatekeeping’ function of the PTC. This function includes the PTC’s power to ‘filter-out’ unsubstantiated, inadmissible, unlawful, or politically motivated situations and cases that the Prosecutor may want to pursue. It also includes the PTC’s power to ‘filter-in’ (i) legitimate and legally grounded situations and cases that the Prosecutor has arbitrarily excluded on the sole basis of considerations of the ‘interests of justice’; and (ii) sufficiently substantiated cases and charges that the Prosecutor wants to pursue. Part of the PTC’s gatekeeping function is also the protection of the rights of those affected by investigations and prosecutions.