After 17 months, the International Criminal Court (ICC) has finally spoken: it may not proceed with an investigation of war crimes and crimes against humanity in Afghanistan. Pre-Trial Chamber II has unanimously denied the Office of the Prosecutor’s (OTP) request to initiate a formal investigation under Article 15 of the Rome Statute, following its already decade-long “preliminary examination” into the situation there. While many had assumed that an authorization was preordained given the evident gravity and scale of crimes in the country and the limited accountability to date, the Court’s decision surprised and angered many by, for the first time, explicitly finding that the “interests of justice” prohibit further inquiry.
How did we get here? First, it is important to emphasize that the ICC judges were unequivocal that the jurisdiction and admissibility requirements for an investigation had been satisfied, as Article 53 requires. There is, they agreed, a “reasonable basis” to believe that war crimes and/or crimes against humanity have been committed by the Taliban, by Afghan government forces, and by U.S. personnel on the territory of Afghanistan since May 1, 2003, the date that its accession to the Statute took effect.
Two preliminary observations are worth making, before turning to the crux of the decision. First, the chamber appeared to impose much stricter limits on the scope of future requests brought under Article 15, stating that the Prosecutor can only investigate authorized incidents “specifically mentioned” in her request or those “closely linked” to it (para 40). This is a more restrictive standard than previous proprio motu authorizations, suggesting that if different incidents were to come to light later in the course of an investigation (as they inevitably do), the OTP would need to seek additional authorization from PTC. This will likely add to an already protracted process; as one commentator notes, it risks transforming “situations” into “mini-cases.” Such reasoning is consistent, however, with a broader attempt by ICC pre-trial chambers (illustrated most recently in the Comoros and Myanmar examinations) to minimize and/or manage prosecutorial discretion in the context of pre-trial proceedings. With this decision, that effort continues.
Second, the chamber’s determination that the “relevant nexus” between an armed conflict and criminal conduct like torture would only “be satisfied when the victims were captured within the borders of Afghanistan” (para 53) likely narrowed one of the more significant aspects of the Prosecutor’s request: the potential for scrutiny over the conduct of U.S. forces. According to the PTC, any torture and ill-treatment perpetrated by U.S. forces had to have been committed, at least in part, on the territory of Afghanistan, meaning that alleged mistreatment against persons captured outside of the country but as part of the same overall conflict would fall outside the Court’s jurisdiction. This is a restrictive reading of current international humanitarian law (encouraged, perhaps, by the Trump administration’s vitriolic threats), but also of the reality in which the CIA ran its “black site operations” – on multiple territories, over a period of time – in the wake of September 11.
These limitations are mere dicta, however, as the chamber’s decision ultimately turned on whether an investigation would serve the “interests of justice,” the meaning of which “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” (para 89). In the Court’s view, the fact that the prospect for such objectives were “extremely limited” (para 96) meant that it should not continue.
The significance of the PTC addressing this question should not be underestimated. Indeed, while the “interests of justice” has a long and complicated history in the Rome Statute, until now it has scarcely been addressed by the Court. A brief (and less than persuasive) policy paper [pdf] produced by the Office of the Prosecutor in 2007 construed the provision narrowly, stating that it should be invoked only in “exceptional circumstances,” with a “presumption in favour of investigation or prosecution.” Consistent with that assessment, in its submission requesting authorization to proceed the OTP “identified no substantial reasons to believe that the opening of an investigation into the situation [in Afghanistan] would not serve the interests of justice.”
Given these stakes, the chamber could have offered a more robust discussion about how to interpret the meaning and application of the provision than the scant three and a half pages it provides. One might imagine, for instance, that it would have considered in greater detail the threshold question of whether the PTC had the power to do what it did in the first place, since Article 15(4) states that the pre-trial chamber “shall authorize the commencement of [an] investigation” if jurisdiction and admissibility have been satisfied. No mention is made there of the “interests of justice.” Similarly, Article 53(1) grants the Prosecutor discretion to consider whether, “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.” If the PTC can review a decision not to initiate an investigation on that basis, is the reverse true? Commentators are split on the question, but it is notable that previous Article 15 authorizations (for instance, in Kenya,) did not conduct an independent interests of justice analysis as the chamber asserts was its obligation here. At the least, this inconsistency calls out for a greater analysis that the PTC failed to provide.
One might also expect that the decision would have engaged in a more searching critique of the OTP’s policy paper, which is acknowledged only once in passing (para 88). Indeed, none of the relevant factors that the 2007 paper sets forth to be considered as part of an “interests” assessment – the gravity of crimes, the interests of victims, the availability of other justice mechanisms, the significance of ongoing peace processes – are addressed in any depth by the chamber. Instead, in three brief paragraphs, the Court offers three reasons for its determination. One is the amount of time elapsed between the alleged crimes and the Prosecutor’s request, which the chamber worries would limit the “availability of evidence” (para 93). Another is the Court’s limited resources, which a complex investigation would threaten to swallow (para 95). And the third is the “relevant political landscape” in both Afghanistan and “key States” (notably left unnamed), which “coupled with the complexity and volatility of the political climate … make it extremely difficult to gauge the prospects of securing meaningful cooperation from relevant authorities for the future” (para 94).
Only the last of these considerations seems remotely appropriate. It defies logic that denying the Prosecutor enhanced powers to investigate would be the appropriate remedy for a lack of evidence. As the chamber says, it may well be that the “availability of evidence for crimes dating back so long in time is … far from being likely” (para 93), but that is the very problem an actual investigation – with the wide range of cooperation obligations it triggers for ICC states parties – is meant to address. Similarly, citing limited resources as justification for declining an investigation effectively rewards states parties (many of whom have been all too eager to see this issue go away) for consistently underfunding the ICC. In any event, it is not the role of judges to micro-manage how the OTP’s budget is spent.
Ultimately, the issue that loomed largest was the political cooperation an Afghanistan investigation would require. Such concerns are real and practical enough but it is the ICC Prosecutor, in the exercise of her discretion, who is better placed to make these decisions. It is her office that spent 10 years receiving and assessing information from international organizations, NGOs, and victims groups working on the ground in Afghanistan. To this very point, in a previous policy paper, the OTP presciently noted that “feasibility is not a separate factor under the Statute … when determining to open an investigation,” as doing so “could prejudice the consistent application of the Statute and might encourage obstructionism to dissuade ICC intervention.”
This is the trap into which the PTC fell (or walked). Rather than addressing the legal merits of the request, the chamber instead addressed decisions – whom to investigate, what to prioritize, and when to do so – that are inevitably political. In so doing, it confused determinations about feasibility that are better entrusted to the OTP with a narrow reading of what the “interests of justice” should mean, one stripped of any consideration about victims’ actual interests. Moreover, the chamber’s silence speaks volumes as to what specific political conditions have arguably rendered the prospect of at least certain aspects of a successful investigation in Afghanistan unfeasible (an unprecedented attack on the rule of law by the U.S. government, for instance, goes unmentioned). Rather than granting the Prosecutor the authority to think strategically about how to navigate this hostility in the exercise of her mandate, the PTC acquiesced to it. Its decision is also likely to vindicate the criticism of many African states that have criticized the ICC as beholden to perceived imperialist benefactors. While the prospect of an ICC investigation in Afghanistan may have galvanized some of those states, this decision threatens to have the opposite effect.
One hopes that the OTP can and will appeal this decision. As others have argued, there are hard choices that the ICC must start to make about efficiency and resource allocation – about the space between what law requires and politics permits – but the question is also about who should be entrusted to make such decisions. There is an honest, thoughtful, and overdue conversation to be had about the place of politics – and political judgment – in the work of the ICC, but with this decision, we are still waiting to have it.
Christian De Vos is a Senior Advocacy Officer with the Open Society Justice Initiative. His book, Complementarity, Catalysts, Compliance: The International Criminal Court in Uganda, Kenya and the Democratic Republic of Congo will be published by Cambridge University Press later this year.