A Few Thoughts on the Afghanistan Appeal Authorization

As most readers will know by now, Pre-Trial Chamber II has partially granted the OTP’s request for leave to appeal the PTC’s refusal to authorize the Afghanistan investigation. Eulogies for the investigation are thus premature. A few thoughts on the PTC’s decision follow.

To begin with, it remains scandalous that it took the PTC this long to certify the appeal. The PTC rejected the OTP’s authorization request on April 12, more than five months ago. It is true that, as Jeremy Hall pointed out on twitter, the OTP only asked for leave to appeal on June 7. But that was itself the fault of the PTC, because Judge Mindua did not issue his separate opinion until May 31 — six weeks after the decision. The PTC must have anticipated not only that the OTP would appeal, but also the issues the OTP would raise. So the judges didn’t exactly have to wait for the OTP to appeal to begin considering the issues. Moreover, the PTC’s certification contains precisely eight pages of substantive analysis. Nothing in that eight pages would have taken three months to write, much less five.

It’s also interesting that the judges disagree about whether the victims themselves were entitled to seek leave to appeal under Art. 82(1)(d). The majority holds that they do not; Judge Mindua dissents (in an opinion that contains more than twice the substance of the main decision). The majority concludes that, for four basic reasons, victims do not qualify as a party under Art. 82(1)(d) in the context of a rejected request to investigate (paras. 18-24): (1) there are no formal victims, only potential ones, at the authorization stage, because at that point the OTP has not definitively identified any incidents or perpetrators; (2) Art. 82(4) specifically permits the victims to appeal a reparations reward, whereas victims are not mentioned in Art. 82(1); (3) Art. 68 provides victims with a general right to present their “views and concerns” about decisions they cannot appeal but still affect their interests; and (4) under Art. 15, the OPT is vested with exclusive authority to initiate investigations.

Judge Mindua, by contrast, emphasizes the “spirit” of Art. 82 and the human rights of the victims (para. 42):

The spirit of article 82 shows clearly that the term ‘either party’ cannot mean only the prosecutor and the defence (suspect or accused). This expression encompasses various participants, including the victims. In my humble view, if the Statute does not clearly mention the victims as having a legal standing to appeal, it is simply an oversight or a legislative lacuna which must be supplemented by case law. This legal vacuum and the necessity of implementing the victims’ participatory rights in light of the preamble of the Rome Statute command to recognise the legal standing of the victims to appeal the Pre-Trial Chamber’s Decision. Doing differently would simply defeat the victim- centred vocation of the Rome Statute and would make victims’ participatory rights meaningless at this very preliminary stage.

I find the majority’s position more convincing — particularly its second and third arguments. I don’t see how Judge Mindua can plausibly argue that the failure to allow victims to appeal the denial of a request to investigate is “simply an oversight or a legislative lacuna,” given that the drafters knew full well how to permit an appeal by victims (as Art. 82(4) indicates) and specifically included a general provision in the Rome Statute that gives victims the right to weigh in on relevant decisions they cannot appeal (Art. 68). So it seems clear that “either party” in Art. 82(1) refers to the prosecution and defense alone.

But that is where my agreement with the decision ends. Most importantly, I am flabbergasted by the PTC’s statement that, in its opinion, not even the OTP has the right to appeal a decision to reject an investigation request (para. 29):

In the view of the Chamber, there are serious doubts as to the possibility to extend the scope of application of article 82(1)(d) as far as to encompass decisions adopted in connection with preliminary examinations and, more specifically, in the context of proceedings under article 15…. In the scenario currently before the Chamber, where an authorisation to investigate has been rejected, one may submit that the exercise of the Court’s jurisdiction is strictly limited – and instrumental – to allowing the Chamber to exercise its specific, fundamental and decisive filtering role in accordance with article 15 of the Statute. Accordingly, there would be no room for potential additional litigation at the appellate stage as a result of the application of article 82(1)(d).

This is a pretty breathtaking position for the PTC to take: if neither the victims nor the OTP can appeal a decision not to authorize an investigation under Art. 82(1)(d), there will be no appellate review whatsoever of the PTC’s decision. As I’ve noted before, Art. 82 jurisprudence takes an exceptionally restrictive approach to what qualifies as “a decision with respect to jurisdiction or admissibility” for purposes of Art. 82(1)(a), one that essentially rules out directly appealing a decision to reject an investigation to the Appeals Chamber. In the PTC’s view, therefore, the Rome Statute conveniently makes the PTC judge, jury, and executioner concerning proprio motu investigations. That cannot be correct.

Fortunately, the PTC pulls back from the abyss at the last moment, acknowledging that the stakes in the Afghanistan situation justify deviating from its general understanding of Art. 82(1)(d):

By the same token, the Chamber is also mindful of the novel and complex nature of the matter, as well as of the impact that a decision sanctioning the inapplicability in limine of article 82(1)(d) may have in the context of these specific proceedings. Accordingly, it still finds it necessary and appropriate to nevertheless approach the resolution of the Prosecutor’s Request on the basis of article 82(1)(d) of the Statute.

The PTC then proceeds to certify for appeal two of the three issues raised by the OTP (paras. 36-39): (1) whether the PTC is permitted or required to assess whether an investigation is in the interests of justice; and (2) whether, if so, the PTC correctly understood the factors that are relevant to its interests of justice analysis. My answer, as readers know, is that the PTC does have to conduct an independent assessment of the interests of justice, but completely botched that assessment in the Afghanistan situation. There seems to be general agreement among commentators on the second point, but the first one is more controversial. In particular, my friend Dov Jacobs believes that the PTC acted ultra vires when it assessed the interests of justice even though the OTP did not find that they justified not opening the Afghanistan investigation. The AC will tell us who’s right.

The PTC’s failure to certify the third issue for appeal is troubling. The OTP wanted the Appeals Chamber to review the PTC’s position that “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.” As I discussed in this post, that limitation not only essentially rules out the OTP investigating crimes committed in Afghanistan after the date of the authorization request — 20 November 2017 — it also directly conflicts with more than a decade’s worth of authorization decisions. So it is not surprising that the OTP wanted the AC to weigh in.

The PTC justifies not certifying the third issue in a rather interesting way — by insisting that its comments concerning the permissible scope of the OTP’s investigation were merely dicta (para. 41):

However, the Chamber notes that those determinations were not essential to the decision, as they did not constitute the basis for the Chamber’s determination to reject the request for authorisation. Accordingly, rather than an issue arising from the decision and essential for the determination of the matter, the Third Issue rather qualifies as an abstract legal question, as such unsuitable to warrant granting an application under article 82(1)(d) of the Statute.

This is too clever by way more than half. Yes, the comments concerning the scope of the investigation were dicta, given that the PTC refused to authorize the investigation itself. But the issue will almost certainly arise again if the Appeals Chamber disagrees with the PTC on the second issue. If the AC clarifies the interests of justice analysis in a way that essentially requires the PTC to authorize the Afghanistan investigation, the PTC will presumably insist again — this time as ratio — that the OTP can only investigate incidents mentioned in its authorization request. The OTP will then have to seek leave to appeal the third issue a second time, dragging out the investigation still further. That makes little sense. It would have been much more sensible for the PTC to simply certify all three issues for appeal, leaving it to the AC to decide which ones to address.

In any case, at least the Afghanistan investigation lives to fight another day. Stay tuned…