Can the PTC’s Afghanistan Decision Be Appealed?

I will write a longer post tonight criticising the PTC’s understanding of the “interests of justice,” but I thought I’d start by cutting to the legal chase: can the OTP appeal the PTC’s decision to reject its request to investigate the situation in Afghanistan?

As I read the Rome Statute, I don’t think so. Here is the text of the relevant provision:

Article 82Appeal against other decisions1.         Either party may appeal any of the following decisions in accordance with the Rules of Procedure and Evidence:

(a)     A decision with respect to jurisdiction or admissibility;

(b)     A decision granting or denying release of the person being investigated or prosecuted;

(c)     A decision of the Pre-Trial Chamber to act on its own initiative under article 56, paragraph 3;

(d)     A decision that involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Pre-Trial or Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings.

Subparagraphs (b), (c), and (d) do not apply here, because they apply to specific cases and proceedings, not to situations. The only possible ground for appeal is thus subparagraph (a) — “a decision with respect to jurisdiction or admissibility.”

Here is the problem: the PTC has not rejected the request to open the Afghanistan investigation because of jurisdiction or admissibility. On the contrary, it specifically states that both requirements are satisfied. The problem, in its view, is that opening the investigation is not in the interests of justice:

96. In summary, the Chamber believes that, notwithstanding the fact all the relevant requirements are met as regards both jurisdiction and admissibility, the current circumstances of the situation in Afghanistan are such as to make the prospects for a successful investigation and prosecution extremely limited. Accordingly, it is unlikely that pursuing an investigation would result in meeting the objectives listed by the victims favouring the investigation, or otherwise positively contributing to it.

It is tempting, of course, to try to shoehorn the interests of justice into the text of Art. 82(1). I’m not sure the drafters ever contemplated the PTC, not the prosecutor, refusing to open an investigation because the interests of justice would not be served by one. Art. 53(1), however, explicitly distinguishes between jurisdiction (subparagraph a), admissibility (subparagraph b), and interests of justice (subparagraph c).

Moreover, as the invaluable online Case Matrix notes, the Appeals Chamber has taken an exceptionally narrow view of Art. 82, holding in the DRC situation (1) that “the Statute defines exhaustively the right to appeal,” and (2)  that limiting interlocutory appeals to the grounds in (a)-(d) is consistent with internationally recognized human rights. Here is what it said when rejecting the OTP’s request for “extraordinary review” of a PTC decision allowing victims to participate in the DRC investigation:

38. Like every other article of the Statute, article 82 must be interpreted and applied in accordance with internationally recognized human rights, as declared in article 21 (3) of the Statute. Is a right to appeal against every decision of a hierarchically subordinate court to a court of appeal, or specifically an interlocutory decision of a criminal court to the court of appeal, acknowledged by universally recognized human rights norms? The answer is in the negative. Only final decisions of a criminal court determinative of its verdict or decisions pertaining to the punishment meted out to the convict are assured as an indispensable right of man. This is reflected in article 14 (5) of the International Covenant on Civil and Political Rights and many regional conventions and treaties giving effect to universally recognized human rights norms. This right is assured to the accused under article 81 of the Statute.

39. The inexorable inference is that the Statute defines exhaustively the right to appeal against decisions of first instance courts, namely decisions of the Pre-Trial or Trial Chambers. No gap is noticeable in the Statute with regard to the power claimed in the sense of an objective not being given effect to by its provisions. The lacuna postulated by the Prosecutor is inexistent.

The unequivocal nature of this language does not bode well for any appeal against the PTC’s decision.

It may well be, then, that the OTP’s only recourse is the one guaranteed it by Art. 15(5) of the Rome Statute: “the presentation of a subsequent request by the Prosecutor based on new facts or evidence regarding the same situation.” If so, that does not bode well for the OTP: it is difficult to imagine what could change the interests of justice calculus so fundamentally that the PTC would decide to authorize the investigation.

UPDATE: It may be, as Dov Jacobs has suggested, that the OTP could describe the appeal as involving a “decision that involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial” — Art. 82(1)(d). But two things are worth noting about that possibility

First, Rule 155(1) of the Rules of Procedure and Evidence provides that “When a party wishes to appeal a decision under article 82, paragraph 1 (d)… that party shall, … make a written application to the Chamber that gave the decision.” The OTP will thus be asking the three judges on the Afghanistan PTC to give the Appeals Chamber the opportunity to tell them they have fundamentally misunderstood the proprio motu review process. I strongly doubt the judges will be so gracious — and a refusal to certify an appeal is itself unappealable. (The appeals system at the ICC makes no sense, as I have often commented.)

Second, I am still not convinced that Art. 82(1)(d) applies. Dov and others have cited the Comoros situation, in which the PTC certified for appeal two issues it had decided against the OTP. Those issues, however, were much more technical in nature — concerning the PTC’s view of how the OTP had to reconsider its decision not to open an investigation. And the PTC refused to certify the fundamental issue in the OTP’s appeal: whether the PTC had the authority to order reconsideration a second time, after the OTP had insisted its first decision was final. I think the non-certified issue is more instructive than the certified ones if we are trying to predict what the PTC would do if the OTP appeals the Afghanistan rejection via Art. 82(1)(d).