The Challenge Between the ICC’s Pre-Trial Chamber and Appeals Chamber in the Situation in Afghanistan

The International Criminal Court (ICC) Appeals Chamber, in its judgment on 5 March 2020, amended the Pre-Trial Chamber’s judgment (dt. 12 April 2019) to the effect that the Prosecutor is now authorized to commence an investigation in relation to alleged crimes committed on the territory of the Islamic Republic of Afghanistan (“Afghanistan”) (see here). Although a preliminary examination of the situation in Afghanistan has been initiated by the Court’s prosecutor since 2006 (here), authorization of an investigation was requested on 30 October 2017 from the Pre-Trial Chamber. 

In requesting authorization of an investigation on the situation in Afghanistan, the Appeals Chamber did not agree with some Pre-Trial Chamber’s findings, and over the course of this piece, I will address some of the key points of difference.

“Interests of Justice” Test and its Assessment

According to Article 53 of the Statute, in deciding whether to initiate an investigation, the Prosecutor shall consider whether: 

(i) 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; 

(ii) that the case is or would be admissible under Article 17; and 

(iii) that there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice. 

In the view of the Pre-Trial Chamber (¶89), in the absence of a definition or other guidance in the statutory texts, the meaning of the ‘interests of justice’ as a factor potentially precluding the exercise of the prosecutorial discretion must be found in the overarching objectives underlying the Statute: the effective prosecution of the most serious international crimes, the fight against impunity and the prevention of mass atrocities. The Chamber noted that all of these elements  suggest  that, at the very minimum, an investigation would only be in the interests of justice if prospectively it appears suitable to result in the effective investigation and subsequent prosecution of cases within a reasonable time frame. The Chamber noted that, even by international criminal justice standards, the eleven-year-long preliminary examination in the situation in Afghanistan was particularly long, and even during this examination, no request was filed under Article 57(3)(c) of the Statute and Rule 47 of the ICC’s Rules of Procedure and Evidence in order to preserve evidence (¶¶92-93). Further, in light of the nature of the crimes and the context where they are alleged to have occurred, pursuing an investigation would inevitably require a significant amount of resources., given the limited amount of ICC’s financial and human resources, this will be to the detriment of other scenarios (be it preliminary examinations, investigations or cases) which appear to have more realistic prospects to lead to trials and thus effectively foster the interests of justice, possibly compromising their chances for success (¶95). 

In summary, the Chamber was of the view that the current situation in Afghanistan is  such that the prospects for a successful investigation and prosecution are extremely  limited and this, far from honouring the victims’ wishes and ensuring that justice be done, would result in creating frustration and possibly hostility vis-a-vis the Court. Therefore, this negatively impacts its very ability to credibly pursue the objectives it was created to serve. Finally, the Chamber rejected the prosecutor’s request to initiate an investigation because it would not serve the interests of justice.

The Appeals Chamber found that the Pre-Trial Chamber erred in its interpretation of Article 15(4) of the Statute when it found itself bound to assess the factors under Article 53(1) of the Statute (¶95). Article 15 governs the initiation of a proprio motu investigation, while Article 53(1) concerns situations which are referred to the Prosecutor by a State Party or the Security Council. In other words, the Appeals Chamber’s judges reduced the scope of judicial control of their colleagues in the Pre-Trial Chamber on the decisions of the prosecutor, noting that the Pre-Trial Chamber is not required to review the Prosecutor’s analysis of the factors under Article 53(1) of the Statute. In the view of the Appeals Chamber, the Pre-Trial Chamber’s decision under Article 15(4) should have addressed only whether there is a reasonable factual basis for the Prosecutor to proceed with an investigation, that is, whether crimes have been committed and whether the potential cases arising from such investigation would appear to fall within the Court’s jurisdiction. 

The Appeals Chamber considered that the ‘interests of justice’ factor set out in Article 53(1)(c) of the Statute, while part of the Prosecutor’s consideration under Article 15(3) of the Statute as per rule 48 of the Rules, is not part of the Pre-Trial Chamber’s decision under Article 15(4) of the Statute. While Rule 48 requires the Prosecutor to consider all the factors under Article 53(1), including the interests of justice, in deciding whether to request authorization of an investigation under Article 15(3), there is no equivalent rule that would import these considerations for the purposes of a Pre-Trial Chamber’s determination under Article 15(4). The Appeals Chamber stated that the Rules were adopted after the Statute and, had the drafters intended to import these considerations into the Pre-Trial Chamber authorization process they would have included such a requirement in the Rules (see here, here). Regarding the nature of the “interests of justice” test, the Chamber stated that Article 53(1) of the Statute is formulated in the negative – the Prosecutor must consider whether there are reasons to believe that an investigation would not serve the interests of justice and need not affirmatively determine that an investigation would be in the interests of justice.

The three main reasons given by the Pre-Trial Chamber concerning the lack of the “interests of justice” test (the eleven-year-long preliminary examination, little cooperation with the prosecutor, and the possibility of access to potential defendants and evidence) are mainly related to non-cooperation with the Prosecutor. If the Pre-Trial Chamber’s approach (i.e., non-cooperation may be caused to an investigation which would not serve the interests of justice), is established as the practice of the Court, it is easy to prevent the Court from prosecuting crimes by not cooperating with it, and, therefore, the Court loses its effectiveness. Also, the Pre-Trial Chamber’s approach in the situation in Afghanistan is contrary to the ICC’s practice in other situations (see here). Some further observe that the Afghanistan decision effectively means that the Pre-Trial Chamber can no longer refuse to authorize an investigation either because the Prosecutor is underestimating the extent to which a State is investigating and/or prosecuting the same suspects for substantially the same conduct or because the Prosecutor is overestimating the gravity of the criminal conduct in the situation. 

Authorization for an investigation should not be restricted to the incidents specifically mentioned in the Prosecutor’s request

Another important finding of the Appeals Chamber is that authorization for an investigation should not be restricted to the incidents specifically mentioned in the Prosecutor’s request or those closely linked to it (¶2). The Appeals Chamber considers that restricting the authorized investigation to the factual information obtained during the preliminary examination would erroneously inhibit the Prosecutor’s truth-seeking function and such a restriction is also unnecessary to fulfill the purpose of Article 15(4) of the Statute in ensuring that the Prosecutor does not embark on a frivolous or politically motivated investigation. However, the authorization could not logically encompass crimes that may have occurred after the date of the request.

The Pre-Trial Chamber had reached the wrong conclusion in this regard. It emphasized that, if it were to authorize an investigation, the Prosecutor could only investigate incidents mentioned in the request and authorized by the Chamber, as well as those within the authorization’s geographical, temporal, and contextual scope, or closely linked to it. The Appeals Chamber considered the unworkability of the Pre-Trial Chamber’s approach and regarded that it would be impossible for the Prosecutor to determine in the course of investigating, which incidents could safely be regarded as ‘closely linked’ to those authorized and which would require the submission of a new request for authorization (¶63). As a result, the Prosecutor would be required to submit repeated (and sometimes unnecessary) requests for authorization of investigation as new facts are uncovered and such cumbersome and unwieldy procedures are likely to have a significant detrimental effect on the conduct of investigations. Such continuous monitoring of the scope of the Prosecutor’s investigation by the Pre-Trial Chamber is contrary to the statutory scheme regulating the respective functions and powers of these two organs with respect to investigations (Article 42(1) concerning the independence of the Prosecutor and her responsibility for the conduct of investigations and Articles 56 and 57 concerning specific functions of the Pre-Trial Chamber during the investigation). 

Extending the Court’s jurisdiction over crimes committed elsewhere than Afghanistan

The Appeals Chamber, contrary to the Pre-Trial Chamber, further extended the Court’s jurisdiction in the situation in Afghanistan over crimes committed elsewhere than Afghanistan. The Pre-Trial Chamber stated that some alleged incidents fell outside the Court’s jurisdiction, since these are said to have occurred against persons captured elsewhere than Afghanistan. It noted that the two requirements “in the context of” and “associated with” are clearly not in the alternative but cumulative. The Pre-Trial Chamber argued that both the wording and the spirit of Common Article 3 to the Geneva Conventions are univocal in confining its territorial scope within the borders of the State where the hostilities are actually occurring. 

The Appeals Chamber further noted that the ICRC has recognized that an existing non-international armed conflict may spill over from the territory of the State in which it began into the territory of a neighbouring State not party to the conflict. In the view of the Appeals Chamber, it is incorrect to assume that, merely because the alleged capture of the victim did not take place in Afghanistan and the alleged criminal act also occurred outside Afghanistan, the conduct cannot possibly have taken place in the context of, and have been associated with, the armed conflict in that State. Rather, a case-by-case analysis would be required to establish whether there is a sufficient nexus for the conduct to be classified as a war crime. Here, the place of capture of the alleged victim may be a relevant factor for this analysis, but it does not settle the matter. In the preliminary examination into the situation in Afghanistan, some evidence concerning war crimes, which allegedly committed by among others, members of the US armed forces and the CIA in detention facilities on the territories of Romania, Lithuania, and Poland, is found (see here). Therefore, in the situation of Afghanistan, the Court can even exercise jurisdiction over some crimes committed in Europe. 

Conclusion

The challenge is common between judicial bodies, and this challenge arises even between the lower and the appellate chamber, as well as between chambers of a newly formed court. However, serious and numerous challenges between chambers of a court that make their decisions based entirely on the same applicable law, are untenable, and the repetition of such challenges, as in the situation in Afghanistan, between the ICC’s Pre-Trial Chamber and Appeals Chamber, may quite well undermine the integrity of the court.


Vahid Bazzar, Ph.D. graduate in international law, Allameh Tabataba’i University, Iran.


Image: © ICC-CPI (modified by Mahima Balaji).

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