How to Ensure Legal Certainty and Norm Clarity in the Interpretation of Article 53 of the Rome Statute of the ICC: Pointers from the Pre-Trial Chamber's Afghanistan Decision

Abstract

The Pre-Trial Chamber's decision to unanimously deny authorisation for an
investigation into the situation of Afghanistan has been severely criticised by
legal scholars and advocates of the ICC. The critics, the paper observes, have
not sympathised with the inherent legal uncertainty and ambiguity
surrounding the term interests of justice (IoJ) as contained in Article 53 of the
Rome Statute. Specifically, criticism of the Afghanistan decision fails to
pragmatically account for the interplay between politics and law, which creates
overlapping or conflicting norms inherent in the Rome Statute of Article 53.
The article, therefore, argues that the term, interests of justice, must be allowed
to develop its interpretative norms and boundaries as the Court's
jurisprudence develop. Consequently, to ensure legal certainty and norm
clarity, the ICC's approach to interpreting Article 53 must adequately respond
to questions of necessity, legitimacy and the genuine constraints on the goals
of international criminal justice. In conclusion, the paper notes that such an
approach to both discourse and application will contribute towards the
avoidance of the binary debate associated with the term, interests of justice.