Why Did the Presidency Assign Judge Aitala to the Afghanistan PTC?

As I have discussed before, in March 2018 the Presidency curiously dissolved the Pre-Trial Chamber (PTC III) that had been dealing with the Afghanistan situation for six months and assigned that situation to a new PTC. Judge Mindua remained part of the new PTC (PTC II), while Judges Chung and Pangalangan were replaced by two newly-elected judges, Akane and Aitala. It was those three judges who, more than a year later, unanimously refused to authorize the Afghanistan investigation.

Readers know what I think about the decision, and I don’t want to rehash my criticisms here. Instead, I want to address an important question: why did the Presidency assign Judge Aitala to PTC II?

The question is worth asking because of Judge Aitala’s legal experience before joining the Court. Specifically, for nearly three years he was deeply involved in criminal-law issues in Afghanistan as a senior legal advisor to the Italian Ministry of Foreign Affairs. Here is what his CV says:

12/2007 – 06/2010

Employer: Ministry of Foreign Affairs and International cooperation – Directorate General for countries of Asia, the Pacific and Antartica

Post title: Senior legal advisor

Other information: Coordinator of the Italian Judicial Programme for Afghanistan (being Italy the Lead country for Justice) and resident representative in Kabul and Herat within international working groups (several months of overall stay in Afghanistan). In this capacity has established and advised Sections for crimes against women and children within the Office of the General Prosecutor of Afghanistan and the Office of the General Prosecutor in Herat; has established and assisted the Afghan Bar Association; has coordinated an Association of defence lawyers providing assistance to women and children victims or accused of crime.

Judge Aitala’s Statement of Qualification adds that he “drafted criminal legislation” for the Afghanistan government in his capacity as Coordinator of the Italian Judicial Programme for Afghanistan.

All of these activities took place during the time-frame covered by the OTP’s request to open an investigation. So did it really make sense to assign Judge Aitala to the Afghanistan situation? Although I have no reason to believe that he was not acting impartially when he voted to reject the OTP’s authorization request — indeed, the one time I met him he struck me as a highly intelligent and thoughtful judge — the fact remains that he rejected an OTP investigation into the activities of a government he advised on criminal law issues and for which he even wrote criminal legislation.

Given the importance of the Afghanistan decision, it is baffling that the Presidency decided to assign Judge Aitala to PTC II. After all, four other judges (not counting Judge Akane) were elected to the Court at the same time — and one of those judges, Reine Alapini-Gansou, was also assigned to the Pre-Trial Division. Why not assign Judge Aitala to PTC I (dealing with the situations in the DRC, Libya, Mali, Georgia, Gabon, and Comoros) and Judge Alapini-Gansou to PTC II?

Again: I am not casting aspersions at Judge Aitala. My problem is with the Presidency, which has consistently mishandled the Afghanistan situation. Judge Aitala’s assignment is yet another black mark on its record.

NOTE: I was alerted to Judge Aitala’s background by a footnote in the Center for Constitutional Right’s excellent submission to the Special Rapporteur on the Independence of Judges and Lawyers concerning the US’s interference with the ICC.