The Appeals Chamber Got One Aspect of the Afghanistan Decision Very Wrong

I wanted to wait a few days to write this post, because in almost every respect I wholeheartedly endorse the Appeals Chamber’s recent decision in the Afghanistan situation. The AC corrected fundamental legal errors by the Pre-Trial Chamber concerning the scope of the authorized investigation and the required nexus for war crimes. And, of course, the AC reaffirmed in no uncertain terms the ICC’s right to investigate international crimes committed by non-state parties — even, and perhaps especially, powerful non-state parties like the US.  I don’t think it’s hyperbolic to say that a contrary decision would have signalled the end of the ICC as a meaningful international institution.

I am, however, deeply concerned by one aspect of the Afghanistan decision: namely, the AC’s conclusion that the PTC cannot review the interests of justice when deciding whether to authorize a proprio motu investigation (para. 46). In and of itself, that is no big deal: pre-Afghanistan practice indicates that PTCs were never particularly interested in second-guessing the OTP concerning the interests of justice. The implications of the AC’s reasoning, however, are vastly more consequential — so consequential, in my view, that the Afghanistan decision undermines the careful balance of power between the OTP and PTC that states negotiated at Rome, without which many states would have refused to give the OTP proprio motu power in the first place.

Here is the key paragraph (para. 45):

The Appeals Chamber concludes that a plain reading of the relevant legal provisions in their context suggests that the pre-trial chamber under article 15(4) of the Statute is only required to assess the information contained in the Prosecutor’s request to determine whether there is a reasonable factual basis to proceed with an investigation, in the sense of whether crimes have been committed, and whether the potential case(s) arising from such investigation would appear to fall within the Court’s jurisdiction. In this regard, the Appeals Chamber notes that the process under paragraphs 3-5 of article 15 is not a review of the Prosecutor’s determination. Rather the Prosecutor seeks the pre-trial chamber’s authorisation to proceed and that authorisation should be based on the application by the pre-trial chamber of the separate factors specified in paragraph 4, to the Prosecutor’s application. Thus the pre-trial chamber is required to reach its own determination under article 15(4) of the Statute as to whether there is a reasonable basis to proceed with an investigation. It is not called to review the Prosecutor’s analysis of the factors under article 53(1)(a) to (c) of the Statute.

The final sentence is key to understanding what the Afghanistan decision does. Most obviously, it means that the PTC cannot review the OPT’s determination that there is no reason to think an otherwise justifiable proprio motu investigation is nevertheless not in the interests of justice — that’s Art. 53(1)(c). But it also means that the PTC cannot review the OTP’s determination that the potential case or cases in the situation are admissible — that’s Art. 53(1)(b). That may seem like a small thing, but it’s not. Admissibility comprises two of the most critical aspects of the OTP’s decision to open a proprio motu investigation (or any investigation, for that matter): complementarity and gravity (Art. 17). The Afghanistan decision thus means that the PTC can no longer refuse to authorize an investigation either because the OTP is underestimating the extent to which a state is investigating and/or prosecuting the same suspects for substantially the same conduct or because the OTP is overestimating the gravity of the criminal conduct in the situation.

Instead, as Paragraph 45 above makes clear, the proprio motu authorization process is now little more than a box-ticking exercise. The PTC begins by reviewing the information the OTP provides in its authorization request to determine whether it indicates international crimes have been committed in the situation. It then makes sure that the potential cases in the situation appear to be within the Court’s jurisdiction. It is difficult to imagine an OTP request ever not satisfying those two conditions. Not even the roguest of rogue prosecutors would try to investigate a situation in which there were no crimes at all, the crimes were not international, the crimes were committed before 1 July 2002 (or whatever the relevant temporal limit is), or the crimes were not committed on the territory of a state party or by a national of a state party.

I am sure there are readers who think all of this is a good thing — a desirable shift of authority over proprio motu investigations from the PTC to the OTP. And indeed, the decision will prevent the PTC from pulling another Afghanistan in the future. It is important to remember, though, why the OTP is required to ask the PTC to authorize a proprio motu investigation. During the drafting of the Rome Statute, a number of states, particularly powerful ones like the US, wanted to limit OTP investigations to state referrals and Security Council referrals. That position was, in fact, the one adopted by the ILC in its Draft Statute for the Court. A significant majority of states, however, insisted that the prosecutor should be able to investigate any situation within the ICC’s jurisdiction proprio motu. States in favor of an independent Prosecutor won the day, as Art. 15 makes clear. But that victory came at a price: namely, the need for the PTC to authorize a proprio motu investigation based on a substantive review of the OTP’s request.

By reducing authorization to an empty formalistic exercise, the Afghanistan decision fundamentally undermines that bargain. Yes, we want to avoid future fiascoes like the PTC’s refusal to authorize the Afghanistan investigation. Yes, the PTC should defer to some extent to the OTP’s assessment of things like complementarity, gravity, and the interests of justice. But prohibiting the PTC from even contemplating those critical issues goes too far — and will, I believe, prove to be a substantial disincentive for non-states parties who might be contemplating joining the Court. If the AC can’t be trusted to honour one of the Rome Conference’s foundational decisions concerning the OTP’s power, why should an ICC-wary state join?

To be sure, this view is based on my assumption that the AC’s decision is incorrect. If the AC is properly interpreting Art. 15(4), I have nothing to complain about. But I don’t think the AC got the issue right, for the following reasons.

The AC begins its analysis (para. 33) by emphasising the difference between Art. 15 and Art. 53:

On the basis of the foregoing, the Appeals Chamber considers that the content and placement of articles 15 and 53(1) of the Statute make it clear that these are separate provisions addressing the initiation of an investigation by the Prosecutor in two distinct contexts. Article 15 of the Statute governs the initiation of a proprio motu investigation, while article 53(1) concerns situations which are referred to the Prosecutor by a State Party or the Security Council.

It then notes (para. 34) that the PTC’s review power is ostensibly much more limited under Art. 15 than under Art. 53 (emphasis mine):

The Appeals Chamber notes that article 15 of the Statute does not refer to the interests of justice or to article 53 of the Statute. Article 15(4) of the Statute requires a pre-trial chamber to determine only whether ‘there is a reasonable basis to proceed with an investigation’, and whether ‘the case appears to fall within the jurisdiction of the Court’. This provision does not identify additional considerations that the pre-trial chamber must take into account for the purpose of this determination. A plain reading of the provisions, therefore, indicates that, for the purposes of exercising judicial control at this early stage of the proceeding, the pre-trial chamber need only consider whether there is a reasonable factual basis to proceed with an investigation, in the sense of whether crimes have been committed, and whether potential case(s) arising from such investigation appear to fall within the Court’s jurisdiction. This interpretation fully reflects the concern of the drafters in terms of the exercise of the proprio motu power noted above.

Note what the AC does here. Art. 15(4) instructs the PTC to determine whether there is “a reasonable basis to proceed with an investigation.” The AC changes the nature of that review, holding that the PTC must only determine whether there is “a reasonable factual basis” to believe “crimes have been committed.” The AC makes no attempt to explain why the drafters of Art. 15 would not have used the latter expression if they believed that the PTC’s review was merely factual and extended only to the commission of crimes, nor does it offer much in the way of a defense of reading the absent language into Art. 15. Instead, the AC emphasises that the Regulations of Court only require the OTP to provide “a statement of the facts alleged to provide a reasonable basis to believe that the crimes are being or have been committed” (para. 38) and claims that “during the Rome Conference, a provision was deleted from draft article 15 that would have expressly required the pre-trial chamber to take issues of admissibility into account in determining whether to authorise an investigation” (para. 41).

Neither argument is convincing. The Regulations of Court shed little if any light on how the Rome Statute should be interpreted, given that they were written by the judges themselves, were adopted six years after the Rome Statute, and must in any case “be read subject to the Statute and the Rules” (Reg. 1(1)). Moreover, and more importantly, although it is true that Art. 15 as adopted does not include language in the original Argentine-German proposal that would have required the PTC to determine jurisdiction “having regard to” admissibility, it is anything but clear that the deletion reflected states’ desire to prevent the PTC from considering admissibility when deciding whether to authorize a proprio motu investigation. The AC cites only to the Triffterer commentary on Art. 15 for that point, but that commentary not only fails to support the AC’s reading of Art. 15, it actually says precisely the opposite, insisting that the PTC must review all of the factors in Art. 53(1), including admissibility and the interests of justice  (p. 733):