The Scope of the (Aborted) Afghanistan Investigation

I thought I was done blogging about the Pre-Trial Chamber’s authorization decision, but there is another aspect of it that keeps nagging at me: the limits PTC II would have imposed on the OTP’s investigation if it had authorized it. Here are the key paragraphs (emphasis mine):

40. More specifically, the precise width and breadth of the Prosecutor’s power to investigate are to be determined on the basis of the scope of the Chamber’s authorisation: the Prosecutor can only investigate the incidents that are specifically mentioned in the Request and are authorised by the Chamber, as well as those comprised within the authorisation’s geographical, temporal, and contextual scope, or closely linked to it.

41. In this respect, the Chamber does not share the views of the Prosecution, that it “should be permitted to expand or modify its investigation with respect to the acts identified in this Request or other alleged acts, incidents, groups or persons and/or to adopt different legal qualifications, so long as the cases brought forward for prosecution are sufficiently linked to the authorised situation (emphasis added).” The need to preserve the filtering function of the authorisation under article 15 requires that the power to investigate beyond the incidents specifically mentioned therein only exist in respect of, and be limited to, those incidents which can be regarded as having a close link, rather than a simply “sufficient” one, with one or more of the incidents specifically authorised by the Pre-Trial Chamber. The closeness of this link cannot be predefined once for all; it is to be assessed taking into account the temporal, territorial and material paramenters [sic] of the authorisation as granted. Proximity in time and/or in location, identity of or connection between alleged perpetrators, identity of pattern or suitability to be considered as expression of the same policy or programme, are some among the factors allowing a Chamber to establish such connection.

The Afghanistan PTC’s understanding of the scope of a proprio motu investigation is deeply problematic. To begin with, limiting the scope of the OTP’s investigation to the crimes specified in its authorization request elides the distinction between a preliminary examination and a formal investigation. The preliminary examination is designed to establish that there is, in fact, a “reasonable basis” to give the OTP the authority and cooperation it needs to conduct a successful investigation; it is not intended to establish the parameters of the investigation itself. How could it? As PTC I noted in the Georgia authorization decision (para. 64), preliminary examinations are just that — preliminary:

[F]or the procedure of article 15 of the Statute to be effective it is not necessary to limit the Prosecutor’s investigation to the crimes which are mentioned by the Chamber in its decision authorizing investigation. To impose such limitation would be also illogical, as an examination under article 15(3) and (4) of the Statute is inherently based on limited information. It is precisely the purpose of the investigation to discover proper evidence to enable a determination which crimes, if any, may be prosecuted.

To be sure, the Afghanistan PTC noted that the OTP could also investigate crimes with a “close link” to the crimes in its authorization request. Even so, the PTC’s decision deviates considerably from previous PTC jurisprudence. Most obviously, it is much narrower than the approach PTC III took in the Burundi situation. The Burundi PTC — which included Judge Mindua! — explicitly held that the OTP could investigate any crime that fell within the authorization request’s temporal parameters:

193. With regard to the material scope of the authorized investigation, the Chamber authorizes the commencement of an investigation of any crime within the jurisdiction of the Court committed between 26 April 2015 and 26 October 2017, subject to what is said in the previous paragraph on the temporal scope of the authorized investigation. Therefore, the Prosecutor is not restricted to the incidents and crimes set out in the present decision but may, on the basis of the evidence, extend her investigation to other crimes against humanity or other article 5 crimes, i.e. war crimes and genocide, as long as they remain within the parameters of the authorized investigation. This complies with the Prosecutor’s duty to investigate objectively, in order to establish the truth, pursuant to article 54(1)(a) of the Statute.

An earlier and differently-constituted PTC III took the same expansive approach in the Cote d’Ivoire situation, authorizing without qualification “the commencement of an investigation in Côte d’Ivoire with respect to crimes within the jurisdiction of the Court committed since 28 November 2010.”

The Afghanistan PTC’s “close link” test is, of course, more restrictive than the “sufficient link” test it criticized in its decision. Contrary to what the PTC suggests, though, the sufficient-link test was not invented by the OTP. On the contrary, that test had been specifically endorsed by PTC I in the Georgia situation (para. 64):

[A]n authorization to investigate, given by the Pre-Trial Chamber, extends to all crimes within the jurisdiction of the Court. It is only limited by the parameters of the situation, which in this case can be summarized as events related to the conflict in and around South Ossetia between 1 July and 10 October 2008. Therefore, in principle, events which did not occur in or around South Ossetia or which occurred outside the time period indicated in the Request would not fall into the parameters of the present situation unless they are sufficiently linked thereto and, obviously, fall within the Court’s jurisdiction.

Moreover, with regard to crimes committed outside the time period specified in the OTP’s authorization request, the Georgia PTC was simply following the lead of PTC III in the Cote d’Ivoire situation. After noting with approval that an earlier PTC had permitted the OTP to investigate crimes in the DRC that were either contained in the self-referral or were “sufficiently linked” to it, the Cote d’Ivoire PTC adopted the following approach to crimes committed after the date of the OTP’s authorization request:

Bearing in mind the volatile environment in Côte d’Ivoire, the Chamber finds it necessary to ensure that any grant of authorisation covers investigations into “continuing crimes” — those whose commission extends past the date of the application. Thus, crimes that may be committed after the date of the Prosecutor’s application will be covered by any authorisation, insofar as the contextual elements of the continuing crimes are the same as for those committed prior to 23 June 2011. They must, at least in a broad sense, involve the same actors and have been committed within the context of either the same attacks (crimes against humanity) or the same conflict (war crimes). Therefore if the authorisation is granted, it will include the investigation of any ongoing and continuing crimes that may be committed after the 23 June 2011 as part of the ongoing situation.

The Cote d’Ivoire PTC also pointed out (fn. 279) that the ICTR had taken a “sufficient link” approach to crimes committed outside of its temporal jurisdiction:

There is support in the jurisprudence of the International Criminal Tribunal for Rwanda for the exercise of jurisdiction over ongoing crimes, as long as these acts are sufficiently linked to crimes that took place during the period over which the ICTR has temporal jurisdiction. See Prosecutor v Nsengiyumva, Case No. ICTR-96-12-I, Decision on the Defence Motions Objecting to the Jurisdiction of Trial Chamber on the Amended Indictment, 13 April 2000, paragraphs 27-28.

The Burundi PTC took a similar approach to continuing crimes as the Georgia and Cote d’Ivoire PTCs, emphasising that the OTP could investigate any crime committed outside the temporal parameters of the Burundi authorization request as long as the same contextual elements — particularly the requisite state or organizational policy — were fulfilled:

192. With regard to the temporal scope of the authorized investigation, the Chamber underscores that some crimes, as exemplified in this decision, were committed before 26 April 2015. As a result, the Prosecutor is authorized to extend her investigation over those crimes if the legal requirements of the contextual elements are fulfilled. Moreover, in the light of the continuous nature of certain crimes, the Prosecutor may also extend her investigation to crimes even if they continue after 26 October 2017.

Although “close link” vs “sufficient link” might seem like rhetorical hair-splitting, the difference would actually be exceptionally significant in the Afghanistan situation — particularly concerning crimes committed after the date of the OTP’s authorization request, 20 November 2017. Despite the Cote d’Ivoire, Georgia, and Burundi PTCs each specifically authorising the OTP to investigate at least some post-authorization-request crimes, the Afghanistan PTC insisted that such crimes were categorically off limits (para. 69):

Accordingly, the scope of the scrutiny could not encompass incidents and groups of offenders other than those for which the authorisation was specifically requested. Quite logically, the same applies for other alleged crimes that may have occurred after the date of the Request.

By contrast, the Cote d’Ivoire/Georgia/Burundi “sufficient link” test would enable the OTP to investigate almost any crime committed in Afghanistan committed after 20 November 2017. The Cote d’Ivoire PTC explicitly held that any crime committed in the same armed conflict as an armed conflict identified in the OTP’s original authorization request satisfies the “sufficient link” test. In Afghanistan, the authorization request mentions only one armed conflict: a non-international one that began in 2002 and continues to this day. Under the “sufficient link” test, therefore, the OTP could investigate any war crime committed in Afghanistan after 20 November 2017 by by the Taliban, by the Afghan armed forces, by American armed forces, or by the CIA. That is significant authority — and it would continue until the Afghanistan NIAC ended.

Finally, it is worth noting that even the most restrictive of all the previous PTC authorizations, in the Kenya situation, provides little support for the Afghanistan PTC’s decision. The Kenya PTC similarly refused to permit the OTP to investigate crimes committed after the date of the authorization request (para. 206). Within the temporal parameters of the authorization request, however, the Kenya PTC imposed no limits on the OTP’s investigation. On the contrary, it authorized the OTP to investigate any act amounting to a crime against humanity (para. 209) — the only kind of crime the OTP had alleged.

Let’s be clear about one thing: the Afghanistan PTC was not bound by the authorization decisions of the PTCs that preceded it. At the very least, though, it should have explained why it believed all of the previous PTCs were wrong concerning the permissible scope of proprio motu investigations. Instead, as with the operative interests of justice section, the PTC did not even acknowledge that it was casting aside a decade worth of jurisprudence. Indeed, the relevant paragraphs in the decision (paras. 40-42) do not include a single footnote. That is simply unacceptable given the importance of the Afghanistan decision to the long-term legitimacy of the Court.