Under Construction Journal Issue 6.1 UNDER CONSTRUCTION JOURNAL 6.1 | Page 94

FCPAHT
The FCPAHT have a wealth of experience of adjudicating in highly sensitive and delicate political
environments whether this be in Nuremberg after World War II or in Sierra Leone after the decade-long
civil war 30 . Given this experience and their previous positions within the international criminal justice
system, one should not be surprised with the position that they support, that of the Office of the
Prosecutor.
For example, when construing Article 53 (1) (c) (the ‘interests of justice’ provision), they state that
this is to be used by the OTP in any consideration of proceeding with an investigation, in addition to the
two other considerations; the gravity of the crimes and the interests of the victims 31 . Furthermore, they
highlight that Article 53 (1) (c) is a positive obligation for the OTP to assess and postulate that under the
general rules of interpretation under Article 31 (1) of the Vienna Convention on the Law of Treaties, this
does not permit the PTC to undertake this consideration as a positive obligation 32 .
Consequently, the FCPAHT contend that not only did the PTC err in law but that they based its
decision on extraneous political factors. They include; the time that had elapsed since the commission of
some of the alleged criminal conduct, the difficulty of ensuring state cooperation and the availability of
relevant evidence and potential suspects 33 . The FCPAHT respond to these factors by raising that any
decision would have an impact on the central mandate of the ICC, that of ending impunity and preventing
atrocities 34 . While, this is a fundamental point to raise by the FCPAHT and one that this piece can support,
the PTC’s considerations may have an eye on the history of non-state cooperation within cases at the ICC,
with Kenya and South Africa being fresh in the memory 35 . Whether this is underpinning the PTC’s decision
or not, one thing that is clear is that the OTP is acting in the utmost good faith for the victims. However,
30
For more details on the individual members of the FCPAHT, see Situation in the Islamic Republic of Afghanistan
(Amicus Curiae Observations on behalf of Former International Chief Prosecutors David M. Crane, Benjamin B.
Ferencz, Richard J. Goldstone, Carla del Ponte and Stephen J. Rapp) ICC-02/17-113 (15 November 2019), 3.
31
ibid, 8.
32
ibid.
33
ibid, 9-10.
34
1998 Rome Statute, supra n. 3, Preamble.
35
“Full Statement of the Prosecutor, Fatou Bensouda, on external expert review and lessons drawn from the Kenya
situation”, The Office of the Prosecutor, accessed 26 November 2019, https://www.icc-
cpi.int/itemsDocuments/261119-otp-statement-kenya-eng.pdf; “The International Criminal Court finds that South
Africa broke the law”, The Economist, accessed 20 November 2019, https://www.economist.com/middle-east-and-
africa/2017/07/07/the-international-criminal-court-finds-that-south-africa-broke-the-law.
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