One Word for the PTC on the Interests of Justice: Taliban

In my previous post, I defended the right of the Pre-Trial Chamber (PTC) to review  the OTP’s assessment of whether there were, to quote Art. 53(1)(c) of the Rome Statute, “substantial reasons to believe that an investigation would not serve the interests of justice.” In this post, I want to explain why I think the PTC got that review completely, utterly wrong.

The first thing to note is that we probably should have seen this decision coming. The groundwork was laid in the Comoros situation, where the PTC ordered the OTP to reconsider its decision not to open an investigation. I noted then that the PTC’s bizarre approach to gravity seemed designed to force the OTP to focus more on the interests of justice and less on jurisdiction and admissibility:

It will be the rare situation indeed that does not satisfy Art. 53(1)(a) and Art. 53(1)(b). How many non-frivolous referrals do not contain allegations of at least one crime within the Court’s jurisdiction? And how many situations will fail gravity analysis in light of the PTC’s insistence that a situation involving only low-level perpetrators and less than a dozen deaths is grave enough for a formal investigation? If allowed to stand, then, the PTC’s decision will force the OTP to either open formal investigations into literally dozens of situations (including all of the current situations it is preliminarily examining) or decline to investigate specifically on the basis of interests of justice — the one criterion, according to the PTC, where it maintains considerable discretion. Given the OTP’s evident resource limitations, that is not really a choice.

And therein lies true danger of the PTC’s Comoros decision. Recall what I said earlier: when the OTP declines to open a formal investigation because a situation does not include a crime within the Court’s jurisdiction or because the situation is not adequately grave, the PTC can only request the OTP reconsider its decision not to investigate. The current decision is an example. But when the OTP declines to open a formal investigation because such an investigation would not be in the interests of justice, the PTC can demand the OTP reconsider. In practice, then, the Comoros decision will force the OTP to decline to open investigations on the one ground that is always subject to “hard” review by the PTC.

The Afghanistan rejection is simply the next front in the ongoing war between the OTP and the judiciary over who has primary authority to decide which situations the ICC will investigate.

With that said, let’s turn to the PTC’s analysis of the interests of justice. The PTC begins by arguing that, because the Rome Statute and the RPE provide no guidance, the meaning of the interests of justice must be derived from the object and purpose of the Rome Statute:

89. In the absence of a definition or other guidance in the statutory texts, the meaning of the interests of justice as a factor potentially precluding the exercise of the prosecutorial discretion must be found in the overarching objectives underlying the Statute: the effective prosecution of the most serious international crimes, the fight against impunity and the prevention of mass atrocities. All of these elements concur in suggesting that, at the very minimum, an investigation would only be in the interests of justice if prospectively it appears suitable to result in the effective investigation and subsequent prosecution of cases within a reasonable time frame.

In the abstract, I have a certain sympathy for this statement. I have long argued that the OTP needs to focus on situations it can effectively investigate. But there are two problems with the PTC’s position. To begin with, the OTP has always rejected the idea that feasibility is relevant to its interests of justice assessment — and warned against doing precisely what the PTC has now done: reducing the interests of justice to a mechanical determination of whether an investigation is likely to succeed. Here is what it said in the “interests of justice” section of its 2013 Policy Paper on Preliminary Examinations:

70. In terms of whether effective investigations are operationally feasible, the Office notes that feasibility is not a separate factor under the Statute as such when determining whether to open an investigation. Weighing feasibility as a separate self-standing factor, moreover, could prejudice the consistent application of the Statute and might encourage obstructionism to dissuade ICC intervention.

The OTP made that statement in the middle of the Afghanistan preliminary examination, and it reflects longstanding OTP policy. Yet at no point in time did the PTC — or any other PTC — suggest or even hint that the the OTP’s position was wrong. At the very least, therefore, the PTC should have asked the OTP to brief the feasibility issue before rejecting the Afghanistan request solely on the basis of an interpretation of the interests of justice that the OTP has always rejected.

Moreover, even if feasibility of investigation is relevant to whether opening an investigation is in the interests of justice, it is anything but clear that the PTC is entitled to substitute its assessment of feasibility for the OTP’s. It is exceptionally clear that the PTC has engaged in de novo review of the OTP’s determination that there are not “substantial reasons to believe that an investigation would not serve the interests of justice.” Even if reviewing the interests of justice is appropriate — as I believe it is — de novo review is not. Art. 15 and Art. 53(1) quite plainly assign primary responsibility for assessing the interests of justice to the OTP. And more importantly, the OTP is in a much better position to assess the feasibility of investigation than the PTC. Consider the list of factors the PTC identifies as relevant to the feasibility assessment:

91. The following factors appear to be particularly relevant: (i) the significant time elapsed between the alleged crimes and the Request; (ii) the scarce cooperation obtained by the Prosecutor throughout this time, even for the limited purposes of a preliminary examination, as such based on information rather than evidence; (iii) the likelihood that both relevant evidence and potential relevant suspects might still be available and within reach of the Prosecution’s investigative efforts and activities at this stage.

It is sheer folly for the PTC to believe that it can assess any of these factors better than the OTP. The OTP has lived with the Afghanistan preliminary examination for more than a decade; two of the judges on the PTC have only been assigned to the situation since March 2018. At the very least, therefore, the PTC should have given considerable weight to the OTP’s conclusion that an Afghanistan investigation is feasible. Instead, the PTC simply substitutes its analysis of feasibility for the OTP’s, giving the latter no credence at all. And it does so without even a single word concerning the standard of review.

The PTC’s willingness to engage in such de novo review, I believe, is inconsistent with the structural independence of the OTP. Moreover, the de novo review that the PTC engages is simply shockingly bad. Consider the following paragraph:

94. Second, subsequent changes within the relevant political landscape both in Afghanistan and in key States (both parties and non-parties to the Statute), coupled with the complexity and volatility of the political climate still surrounding the Afghan scenario, make it extremely difficult to gauge the prospects of securing meaningful cooperation from relevant authorities for the future, whether in respect of investigations or of surrender of suspects; suffice it to say that nothing in the present conjuncture gives any reason to believe such cooperation can be taken for granted. Indeed, the Prosecution acknowledges the difficulties in securing albeit minimal cooperation from the relevant authorities as one of the reasons explaining the unusual duration of the preliminary examination. The Chamber has noted the Prosecution’s submissions to the effect that even neutral, low-impact activities proved unfeasible. Accordingly, it seems reasonable to assume that these difficulties will prove even trickier in the context of an investigation proper.

The problems with this statement are almost too numerous to count. First, as many commenters have already noted, it simply rewards the US for its open hostility to the ICC and will encourage every state subject to a preliminary examination to make it as difficult as possible for the OTP to investigate. Second, the PTC is simply wrong to suggest that the OTP’s investigative difficulties “will prove even tricker in the context of an investigation proper.” After all, the opening of an investigation triggers a wide variety of cooperation obligations — in Part 9 of the Rome Statute — that do not exist at the preliminary examination stage. Even I am not cynical enough to believe that those obligations mean nothing to states. And third, the PTC does not even attempt to explain why the Afghanistan situation is any different than other situations the PTC has permitted the OTP to investigate proprio motu, such as Kenya and Georgia. Were the prospects for cooperation really better there? (Experience suggests otherwise.) And didn’t the PTC basically order the OTP just a few months ago to investigate the Rohingya situation, where the prospects of Myanmar’s cooperation are less than zero?

The most significant problem with the PTC’s statement in paragraph 94, however, is reflected in the title of this post. Even if we accept (as I do) that it will be exceptionally difficult for the OTP to effectively investigate and prosecute Americans and members of the Afghan National Security Forces, there is absolutely no reason to believe that it will face similar problems investigating crimes committed by the Taliban. Those crimes are at the heart of the Afghanistan preliminary examination, because they are far more numerous, far more widespread (occurring in as many as 25 provinces, according to the OTP), and far more grave than the crimes committed by the CIA and Afghan forces. The OTP has been able to obtain significant evidence of those crimes not only through its own investigative efforts, but also — as the PTC acknowledges (para. 18) — from both international and domestic organizations operating within Afghanistan, such as the United Nations Assistance Mission in Afghanistan and the Afghan Independent Human Rights Commission. Moreover, the OTP made clear in its 2017 preliminary-examinations report that the Afghan government has recently made significant strides toward accountability:

More recently, efforts have been taken by the Government of Afghanistan to build its capacity to meet its obligations under the Statute and to facilitate national investigations and prosecutions of ICC crimes. In particular, in 2014 the Government of Afghanistan updated the country’s Criminal Procedure Code in order, inter alia, to exempt Rome Statute crimes from the ordinary statutes of limitations. The Government of Afghanistan has also promulgated a new Penal Code which now explicitly incorporates Rome Statute crimes and specifies superior responsibility as an available mode of liability. The Penal Code Bill was adopted by Afghanistan’s parliament in May 2017.

Those reforms are unlikely to have much purchase concerning crimes committed by Afghan forces. But it is difficult to believe that they will not facilitate investigations of the Taliban both by the government and by the OTP. Indeed, to the best of my knowledge (readers should weigh in), the Afghan government has never said that it would not cooperate with the ICC concerning Taliban crimes. Yet not only does the PTC fail to acknowledge Afghanistan’s legislative and other reforms, it suggests — without so much as a single word of explanation — that cooperation would not be forthcoming despite the shared government/OTP interest in Taliban accountability.

It is also entirely possible that the US will soon change its tune about the OTP investigating crimes committed by the Taliban. The Trump administration may be opposed to any and all cooperation with the ICC as a matter of (misguided) principle. But previous administrations, Democrat and Republican alike, have been more than willing to cooperate with the Court when it was in their interests to do so — Darfur, Uganda, the DRC. So it is highly likely that the US will be more than happy to help  the OTP investigate the much-hated Taliban if Donald Trump loses his bid for re-election in 2020. Perhaps the PTC would consider the election of a pragmatic Democrat “new facts or evidence” that would justify the OTP filing a second request to open an investigation under Art. 15(5) of the Rome Statute. But that is a counterintuitive interpretation — and even if it is the correct one, it hardly makes sense for the PTC to base its authorization decisions, which can trigger investigations that last years, on the shifting winds of politics in any individual state, even a powerful one like the US.

The PTC’s failure to explain why the OTP would be unable to investigate Taliban crimes is, in my view, fatal to its decision. How could it not be in the interests of justice for the OTP to investigate the gravest and most numerous crimes in the Afghanistan situation? Especially given that, as the PTC itself acknowledges (para. 87), “680 out of the 699 applications [from victims] welcomed the prospect of an investigation aimed at bringing culprits to justice, preventing crime and establishing the truth”? It is of course regrettable that the OTP will find it nearly impossible to investigate crimes committed by the CIA and Afghan forces. But no coherent understanding of the “interests of justice” can predicate the opening of an investigation on the OTP’s ability to investigate all of the parties to a conflict equally. And as Kip Hale often reminds us, who knows what the future will hold? For now, prosecuting the Taliban is enough. The other parties can come later.

In short, the PTC’s decision to reject the Afghanistan investigation solely on the grounds of the “interests of justice” is profoundly, irremediably, and dangerously wrong. If allowed to stand, it will not only leave the Taliban’s many crimes uninvestigated and unpunished, it will also eviscerate the OTP’s proprio motu power and encourage states, particularly powerful ones, to be as uncooperative with the ICC as possible. I desperately hope my first post is wrong and the OTP will be able to appeal the decision.