Some Additional Thoughts On Appeal Strategies for the OTP in Relation to the Afghanistan Decision

[Dov Jacobs is an Assistant Professor of International Law at Leiden University and a Legal Assistant at the ICC.]

The following ideas come as a follow-up to Kevin Jon Heller’s recent post on possible appeal strategies that the OTP could consider following the decision by the PTC to not authorise the opening of a formal investigation in Afghanistan. I will therefore not repeat what Kevin said and assume that readers will have gone through it before reading the following. This is an important conversation, and I’m glad we can continue it creatively.

As noted by Kevin, there are essentially two possible procedural avenues for the OTP to follow in order to try and appeal the Afghanistan decision: Article 82(1)(a) and Article 82(1)(d).

1. Appeal as of right under article 82(1)(a)

Article 82(1)(a) provides that a Party may appeal : « A decision with respect to jurisdiction or admissibility ».

I do see merit in the logical argument put forward by Kevin, that a decision that has a consequence that the Court not exercise its jurisdiction in a particular situation is very concretely a « decision with respect to jurisdiction ». However, this requires getting over the obvious difficulty that, technically, the question of the interests of justice is neither a question of jurisdiction, nor a question of admissibility. Past case law, mentioned in Kevin’s post, does not bode well for taking a broad view of either of these terms. 

Even the Lubanga decision mentioned by Kevin is possibly not that helpful for three reasons: 1) it is an obiter dictum a fairly old decision, from a differently composed Appeals Chamber and I’m not sure what weight would be given to it today 2) the apparent conflation between jurisdiction and admissibility in the judgment does not have actual legal consequences since Article 82(1)(a) mentions both separately and 3) the decision may actually suggest a strict understanding of « jurisdiction »: the Appeals Chamber found that an abuse of process challenge, which could lead to a «  permanent stay of proceedings » (i.e, lead to the court not exercising jurisdiction in a case anymore) was not a jurisdictional challenge. If applied here to the « interests of justice » issue, it would be possible for someone to use this decision to claim that a decision based on the interests of justice is not technically a jurisdictional challenge, despite its consequence being the non-exercise of jurisdiction by the Court. 

Beyond the legal challenges of using Article 82(1)(a), there is a real strategic risk for the Prosecutor: if this procedural avenue is followed and the Appeals Chamber shuts down the appeal because the wrong Article was used (as in the first Comoros appeal), all chances of actually appealing the decision on the substance will have been lost. Indeed, by the time the Appeals Chamber decides on the applicability of 82(1)(a), the delay to file an request under 82(1)(d) will have obviously expired. This is why I would think the OTP would play it safe and use 82(1)(d).

Before considering that other legal basis, one more point: it should be recalled that in previously mentioned Lubanga Appeals Judgment, the Appeals Chamber did consider the substance of the appeal, despite the fact that it considered that it was not technically a jurisdictional issue (and therefore that an « abuse of process » decision by a PTC could not be directly appealed under 82(1)(a), which is not explicitly said in the Judgment, but which was subsequently affirmed in later case law). Thus, if the Prosecutor were to use Article 82(1)(a), it should be made very clear that even if the Appeals Chamber were to consider that it was the wrong article to base the appeal on, it should nonetheless consider the substance of the appeal given the crucial importance of the issue (dare I say in the « interests of justice »?).

2. Requesting leave to appeal from the PTC under 82(1)(d).

Article 82(1)(d) requires that a Party obtain leave to appeal from the same Chamber that issued the impugned decision if 1) it identifies an « issue » in the decision, 2) that this issue would « significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial » and 3) that an an immediate resolution by the AC « may materially advance the proceedings ».

Here is not the place to list all possible « issues » that arise from the decision. Myself, and others have mentioned a few in the past week and I’m certain there are others.  I do hope that the Prosecutor does pick up on my ultra vires argument, despite strong dissents from both Kevin and now Dapo Akande and Talita de Souza Dias. There are however two difficulties that the OTP will have to deal with: 1) the « issues » will have to be framed in particularly precise legal terms. Indeed, Chambers are particularly adept at rejecting « issues » identified by Parties by claiming that the party is expressing « mere disagreement » with the decision or by claiming that the « issue » does not existe because the Party in fact did not understand the decision (claim which is usually followed by an inappropriate attempt to explain/clarify what the impugned decision actually meant) and 2) none of the « issues » (other than the interpretation of the « interests of justice » of course) technically affected the outcome of the decision, so might not be considered appealable as such.

As for how the issue would « significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial », it is difficult to see how it applies here: the fair conduct of which « proceedings » are we talking about? the « outcome » of which trial? this semantic difficulty is in fact what lead Kevin to initially consider that this Article could not be used to appeal the Afghanistan decision. 

However, inspiration can be found in the second Comoros appeal procedure, where the Prosecutor did use Article 82(1)(d) and was  successful in obtaining leave to appeal. In those proceedings, the Pre-Trial Chamber accepted that issues that could affect the length of the proceedings could be considered to affect the « expeditiousness of the proceedings », which could be applicable here to some extent, given that the decision puts an end to the proceedings. The Prosecutor also argued that « outcome of the trial » should be interpreted in the preliminary examination phase as « outcome of the preliminary examination », but the PTC did not pronounce on this argument. Finally, the PTC in the Comoros situation accepted that an issue deserved immediate resolution by the Appeals Chamber for the following reason (par. 43): “In particular, a resolution by the Appeals Chamber may clarify the delineation of powers since the Second Issue seems to strike at the core of the balance between the supervisory role of the Pre-Trial Chamber and the discretionary power of the Prosecutor during the early stages of the proceedings”. I would say this could also apply to the Afghanistan decision 1) in relation to statements made on the possible scope of the investigation and 2) in relation to the review of the « interests of justice » (should my ultra vires argument be considered).

3. Some creative solutions for the OTP

I’d like to conclude with two possible « outside the box » solutions for the OTP. First of all, there is nothing to prevent the Prosecutor from filing two appeals, one directly before the Appeals Chamber under 82(1)(a) and one before the Pre-Trial Chamber under 82(1)(d). This would allow to cover all bases, and forces the Judges to take their responsibility. Second of all, while I’m not sure what the procedural basis would be to be honest, I’m wondering whether the OTP cannot file a request for clarification before the Appeals Chamber on the matter of the applicability of 82(1)(a) to « interests of justice » matters. Indeed, the ambiguity of the applicable procedural framework should not prevent a Party from actually having access to the appellate stage to have the substance of its appeal heard. In other words, such ambiguity should be prejudicial to the Parties.