The Significance of the ICC Appeals Chamber’s Ruling in the Afghanistan Situation

[Jennifer Trahan is a Professor at the NYU Center for Global Affairs.]

On March 5, 2020, the International Criminal Court’s Appeals Chamber issued an extremely significant ruling authorizing the opening of the Afghanistan investigation.  The decision is important in that it confirms the Prosecutor’s discretion in evaluating whether or not to proceed “in the interests of justice” under Article 53(1)(c) of the Rome Statute, thereby allowing the Afghanistan investigation to proceed. 

The Appeals Chamber ruling also has far broader significance in that it reverses a problematic ruling by Pre-Trial Chamber II that, had it stood, could have imperiled much of the future work of the ICC, by essentially suggesting that where investigations could be unsuccessful or pose political challenges or other such factors, the Prosecutor should simply refrain from conducting an investigation.

Reviewability of “the interests of justice”

The Appeals Chamber ruled on a somewhat technical issue:  the reviewability, where the Prosecutor has acted proprio motu (pursuant to her own power) and where all other criteria under Article 15(4) are satisfied for opening an investigation, of the “interest of justice” under Article 53(1)(c).  (Kevin Jon Heller’s post, also running on Opinio Juris, additionally addresses the ruling.)

Article 53(1)(c) gives the Prosecutor the discretionary power to decide not to proceed to an investigation if it would not be “in the interests of justice.”  The Prosecutor had not made such a negative determination in the Afghanistan situation; that is, she found it was “in the interests of justice” to proceed.

Instead of accepting the Prosecutor’s determination (or even reviewing the Prosecutor’s determination), Pre-Trial Chamber II conducted its own de novo assessment of “the interests of justice” (based on no submissions addressing the issues nor any thorough examination of the proper interpretation of the phrase) and ruled it was not in the interests of justice to proceed.  (PTC, paras. 90-96.)

The Appeals Chamber has now ruled that under Rome Statute Article 15(4), the sole question that the Pre-Trial Chamber is to evaluate in deciding whether or not to authorize the opening of an investigation where the Prosecutor acts proprio motu is whether (1) “there is a reasonable factual basis for the Prosecutor to proceed with the investigation,” and (2) the “investigation appear[s] to fall within the Court’s jurisdiction.”  (Appeals Chamber, para. 1.)  Indeed, that is what the plain language of Article 15(4) states: 

If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation . . . .

Here, Pre-Trial Chamber II found both criteria met.  (PTC, para. 60.)  Accordingly, the Appeals Chamber amended the Pre-Trial Chamber’s ruling to authorize the investigation. 

In some ways, the Appeals Chamber’s decision is about the allocation of authority between the Pre-Trial Chamber and the Prosecutor, with Pre-Trial Chamber II having in the Afghanistan situation taken a heavy hand and made its own assessment of “the interests of justice,” and the Appeals Chamber now restoring the decision to the Prosecutor’s discretion—where it appears to reside under Article 53(1)(c).  The Appeals Chamber is not reading Article 53(1)(c) out of the Statute in such a situation; rather, it finds that the “interests of justice” is something that the Prosecutor must consider “in deciding whether to request authorization of an investigation” (Appeals Chamber, para. 35), only it is “not part of the pre-trial Chamber’s decision under Article 15(4).” (para. 37.)

An interesting Separate Opinion by Judge Carranza concurs with the result, but disagrees with certain language in the Judgment which she found unnecessary to reach—specifically, that the “Prosecutor has absolute discretion” in deciding on the “interests of justice” where she acts proprio motu.  (Carranza, para. 2.)  Eloquently stated, Carranza writes:  “Principles of transparency and accountability of the international rules of law requires that any decision, be it from the Prosecutor or first instance Chambers must be subject to judicial review.”  (Carranza, para. 7, viii.)  Carranza, does not quite explain, however, if “any decision” is reviewable, why exactly she is concurring.  She does suggests the Appeals Chamber opined on issues it did not need to reach—such as reviewability by the Pre-Trial Chamber if the Prosecutor were to make a negative determination regarding “the interests of justice,” as that issue was not before it.  (Carranza, para. 2.)  (That would simply mean that certain language in the Appeals Chamber ruling may be dicta.)

The bigger picture:  whether the ICC should attempt to proceed in challenging situations

As mentioned, the decision is also about a much larger issue, and that is the meaning of this mysterious phrase “the interests of justice.”  Had Pre-Trial Chamber II’s reading, stood, it could have imperiled substantial future work of the Court.

The Pre-Trial Chamber’s original ruling was basically (over-simplified):  to back off a complicated situation.  To be more precise, Pre-Trial Chamber II cited a number of factors that it contended made it difficult to proceed with the Afghanistan investigation (PTC, paras. 90-96) and therefore held that opening the investigation “would not serve the interests of justice.”  (PTC, p. 32.)

Because the Appeals Chamber decided that the Pre-Trial Chamber erred in assessing the “interests of justice” at all, the Appeals Chamber did not examine the Pre-Trial Chamber’s assessment.  Yet, the Appeals Chamber makes clear (admittedly, in dicta) that “the Pre-Trial Chamber did not properly assess the interests of justice,” noting, for example, that it did not properly consider “the gravity of the crimes and the interests of victims as articulated by the victims themselves.”  (Appeals Chamber, para. 49.)  Overall, the Appeals Chamber characterizes the Pre-Trial Chamber decision as “cursory, speculative and . . . not refer[ing] to information capable of supporting it.”  (para. 49.)  The Appeals Chamber thus suggests, had it reached the substance of the Pre-Trial Chamber’s assessment, it would have found reversible error there too.

In fact, one can detect multiple errors in the Pre-Trial Chamber’s assessment.  First, as a procedural matter, as mentioned, the Pre-Trial Chamber appears to have engaged in its own de novo review of “the interests of justice,” rather than reviewing submissions of the Prosecutor.

Second, the Pre-Trial Chamber’s ruling conflicted with the plain language of the words “the interests of justice,” which sound something like “so that justice is done.”  It seems a perversion of the concept to dismiss an investigation that can lead to judicial proceedings “in the interests of justice.”

Third, the Pre-Trial Chamber’s ruling contravened the “object and purpose” of the Rome Statute, which, as amply demonstrated in the Rome Statute’s preamble, is to ensure that “the most serious crimes of concern to the international community” are prosecuted, not to give up and not even attempt to pursue credible allegations of atrocity crimes.

Fourth, the Pre-Trial Chamber’s ruling contravened “applicable treaties and the principles and rules of international law” as well as “internationally recognized human rights” (relevant under Articles 21(1)(b) and 21(3), respectively).  Such laws require that atrocity crimes, such as torture, war crimes, and crimes against humanity must be investigated and/or prosecuted.

Examining the criteria by which the Pre-Trial Chamber purported to evaluate “the interests of justice,” each was equally problematic.  One of the factors the Pre-Trial Chamber considered was the difficulty of proceeding (the anticipated future “prospects for successful . . . investigations” (PTC, para. 90), and another was the “political climate” (PTC, para. 94).  Yet, in the Burundi situation, where Pre-Trial Chamber II acknowledged that “the Government of Burundi has interfered with, intimidate, or harmed victims and witnesses. . . . [and]. . . is suspending international cooperation in connection with the alleged crimes” which could pose a risk to the integrity of the investigation, the PTC authorized the investigation.  (Burundi Art. 15 Decision, paras. 13–14.) 

Another factor the Pre-Trial Chamber considered was that victims of atrocity crimes in Afghanistan could be frustrated if the case is not successful.  (PTC, para. 96.)  That is purely speculative (when there were victims actually represented whose views, as the Appeals Chamber suggests, could have been ascertained).  The Pre-Trial Chamber’s conclusion is also counterintuitive:  victims could have been far more frustrated by having the investigation dismissed ab initio, thereby depriving them of even the chance of obtaining justice.

Another factor the Pre-Trial Chamber considered was the budgetary ramifications of opening the Afghanistan investigation.  (PTC, para. 95).  Yet, the Pre-Trial Chamber is hardly the branch of the ICC to make budget decisions and tell the Prosecutor in which situations she should spend OTP funding. 

Thus, by reversing the Pre-Trial Chamber’s decision—and, importantly, also authorizing the scope of the investigation that the Prosecutor originally requested (Appeals Chamber, paras. 55-78)—the Appeals Chamber undid jurisprudence that could have become quite problematic for the future work of the Court. 

As I argued in my amicus brief (pp. 9-10):

[G]iven that many ICC situations could present similar difficulties—with potential for non-cooperation, victim frustration (and budgetary concerns potentially impacting all situations)—affirming the PTC’s Decision could have [had] dramatically wide-ranging ramifications, endorsing unworkable criteria that suggest[ed] many situation currently under preliminary examination should not proceed. The most pernicious criteria [were] examining the potential for state non-cooperation and “the political climate,” which virtually invite[d] states not to cooperate if they want[ed] a preliminary examination not to proceed, and suggest[ed] the Court should openly consider political factors in deciding where the Court should operate.  Endorsing these criteria would [have] threaten[ed] not only the OTP’s independence but the Court’s independence as a whole by essentially inviting political interference—nothing could be more damaging to the Court.  These criteria would also skew the Court’s docket towards proceeding only against non-state actors or state actors from politically less powerful states, where state cooperation may be more likely forthcoming or obtainable. Such double-standards are anathema to the functioning of a judicial institution.

Facing the challenges ahead

No one believes the Afghanistan investigation will be easy.  It will be complex, remote from The Hague, costly, and could result in adverse political repercussions by those who do not want to see the investigation proceed.  The Appeals Chamber, however is sending an important signal that the ICC should not be dissuaded from carrying out its mandate even in such circumstances.

The ICC States Parties must now ensure that the Prosecutor has sufficient funding for the investigation and must try to shield the Court as best as possible from whatever political machinations may be attempted to derail its work.  Any country that does not want to see its nationals prosecuted in The Hague but is committed to the rule of law has a simple solution:  to investigate and/or prosecute the cases itself (i.e., conduct complementarity), thereby rendering the cases inadmissible before the ICC.  The Appeals Chamber suggested that Afghanistan (whose forces are alleged to be implicated in torture) may want to avail itself of this opportunity (Appeals Chamber, para. 43), but other countries could do so as well.

The Appeals Chamber has delivered an important unanimous ruling that the Prosecutor has the all clear to follow the evidence.