Strategies for Appealing the Afghanistan Decision

I have been thinking more about how the OTP can appeal the Pre-Trial Chamber’s refusal to authorize the Afghanistan investigation. I was perhaps a bit too dour in my assessment of whether the Appeals Chamber is likely to get the chance to reverse a decision that I consider fundamentally flawed.

The most obvious option would be to seek leave to appeal the interests of justice issue under Art. 82(1)(d), which provides that “[e]ither party may appeal… [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.” I continue to question whether an Art. 15 request to open a proprio motu investigation can be considered a “proceeding” — the Rome Statute only uses that term in relation to specific suspects and cases. But Dov Jacobs’ point is well taken that the PTC considered issues regarding the OTP’s refusal to open the Comoros investigation to be appealable via Art. 82(1)(d). We will have to wait and see whether the Appeals Chamber agrees; it has not yet issued a decision on the OTP’s appeal. But I would not be surprised if the Appeals Chamber addressed the merits.

The key issue under Art. 82(1)(d), of course, is whether the PTC would grant leave to appeal. I would certainly hope so, given that its refusal to authorize the Afghanistan is perhaps the most momentous decision in the Court’s history. (It’s at least in the top three.) I don’t see how the judges could in good conscience arrogate to themselves the final say over whether the OTP can investigate horrific crimes in Afghanistan involving tens of thousands of victims (and perpetrators from the most powerful state in the world). Whether the PTC took the correct approach to the interests of justice is precisely the kind of legal issue that screams out for appellate consideration — particularly in light of the fact that the PTC gave the OTP absolutely no warning that the interests of justice would determine the outcome of the authorization request, much less asked the OTP to weigh in on how those interests should be understood and applied. Indeed, I think that is a point particularly worth mentioning in any request for leave to appeal: in the Ongwen case, the Appeals Chamber granted an appeal under Art. 82(1)(d) precisely because the PTC had not sought submissions from the parties before ordering them to present evidence for the confirmation of charges hearing using a particular type of chart. In its view, “the exercise of [the PTC’s] discretion in this regard was unfair and unreasonable and had a material effect on the Impugned Decision.” If the PTC should have asked for submissions before introducing a minor evidentiary requirement, should it not have asked for submissions before rejecting the Afghanistan request solely on the basis of an unprecedented and frankly unforeseeable understanding of the interests of justice?

It is entirely possible, of course, that the PTC’s desire to avoid being reversed by the Appeals Chamber in such a high-profile situation may outweigh its good sense. So it is worth speculating about whether the OTP has any possibility of appealing the Afghanistan rejection directly to the Appeals Chamber via Art. 82(1)(a,), which provides that “[e]ither party may appeal… [a] decision with respect to jurisdiction or admissibility.”

Both Gabor Rona and Christian De Vos have noted that there is at least one jurisdictional issue raised by the PTC’s decision: whether the PTC was correct to hold that the Court lacks jurisdiction ratione loci over CIA torture in black sites outside of Afghanistan (paras. 51-55). Substantively, I completely agree with them that — to quote Gabor — “[t]his is a spectacularly wrong and dangerous conclusion, based on a false understanding of both the Rome Statute and of the broader legal context of the law of armed conflict.” Procedurally, however, I don’t think that this particular mistake by the PTC  is directly appealable. The problem is that the PTC’s ratione loci analysis is obiter, because the PTC ultimately concluded that jurisdiction was satisfied (para. 60). As the late Hakan Friman points out in the relevant Case Matrix entry, the Appeals Chamber has made clear that only the ratio of a decision can be directly appealed under Art. 82(1)(a):

The phrase “decision with respect to” is interpreted to mean that the operative part of the decision itself must pertain directly to a question on the jurisdiction of the Court or the admissibility of a case, and it is not sufficient that there is an indirect or tangential link between the underlying decision and questions of jurisdiction or admissibility (Situation in Kenya, ICC A. Ch., Decision on the admissibility of the “Appeal of the Government of Kenya against the ‘Decision on the Request for Assistance Submitted on Behalf of the Government of the Republic of Kenya Pursuant to Article 93(10) of the Statute and Rule 194 of the Rules of Procedure and Evidence'”, ICC-01/09-78, 10 August 2011, paras. 15-16; Prosecutor v. Gaddafi and Al-Senussi, ICC A. Ch., Decision on the admissibility of the “Appeal Against Decision on Application Under Rule 103” of Ms Mishana Hosseinioun of 7 February 2012, ICC-01/11-01/11-74, 9 March 2012, para. 10).

That said, I think it might be worthwhile for the OTP to be bold and appeal the very ratio of the PTC’s decision: namely, that it would not be in the interests of justice to authorize the Afghanistan investigation. I think the OTP could quite plausibly argue that, in fact, the decision is “[a] decision with respect to jurisdiction or admissibility” for purposes of Art. 82(1)(a). Yes, both the OTP and the PTC addressed the “interests of justice” separately from “jurisdiction” and “admissibility.” But all three factors are part of the same analysis: whether the OTP had a reasonable basis to proceed with the investigation. It makes little sense to interpret Art. 82(1)(a)’s reference to jurisdiction and admissibility to exclude the appealability of the third necessary element of the analysis. Indeed, given that the PTC must refuse to authorize an investigation if any of the three requirements are not satisfied, I think the context of Art. 53(1)(c) — particularly Art. 15(4), which requires the PTC to engage in the same “reasonable basis” analysis as the OTP — suggests that Art. 82(1)(a)’s reference to “jurisdiction and admissibility” should be read to include all three requirements.

Interestingly, the OTP seems to have contemplated making a similar argument in the Comoros situation. In November of last year, after the PTC ordered it to reconsider its decision not to investigate the situation for a second time, the OTP sought leave to appeal under Art. 82(1)(d). (That’s the submission Dov is citing.) If you read the submission carefully, you will note that the OTP thought seriously about seeking direct appeal to the Appeals Chamber via Art. 82(1)(a) instead — and indeed was of the belief that it had the legal right to do so.

Here are para. 6 and fn. 14:

6. The Prosecution has carefully considered whether it would be appropriate to raise such matters directly with the Appeals Chamber under article 82(1)(a) of the Statute. While it is of the view that such an approach could be sustainable as a matter of law, it is attentive in the present case to the views expressed by various members of the Pre-Trial Chamber that proceeding under article 82(1)(d) would be appropriate. It also considers that, in the particular circumstances of this situation, seeking the Pre-Trial Chamber’s certification of issues for appeal may be another means of demonstrating the Prosecution’s sincere respect for the Pre-Trial Chamber and desire to resolve constructively the legal ambiguities that have arisen.

N. 14. Specifically, in the Prosecution’s view, the Decision is jurisdictional in “nature” because it determines the existence, nature, and/or scope of the Court’s jurisdiction once the Prosecutor has formally issued her final decision under article 53(3)(a) and rule 108(3), which would otherwise terminate all proceedings before the Court concerning the preliminary examination, subject only to a further decision by the Prosecutor under article 53(4). In other words, the Decision is premised on interpreting the legal powers of the Court to state the law on a given issue, under certain conditions. Not only does the operative part of the Decision—the Disposition—pertain directly to a question on the jurisdiction of the Court—because it establishes and depends upon the view that jurisdiction continues even after a formal rule 108(3) notification—but both the majority and the dissenting judge expressly recognised the jurisdictional nature of the ruling: Decision, paras. 19, 63-70, 87,114; Dissenting Opinion, paras. 9-10, 21, 38. See further e.g. ICC-01/04-02/06-1225 OA2, para. 15 (quoting ICC-01/09-78 OA, paras. 15-17).

Although n. 14 is not exactly on point, a similar argument can be made with regard to the Afghanistan situation. Although Art. 53(1) distinguishes between jurisdiction and the interests of justice, the fact remains that unless the OTP decides to file a new request under Art. 15(5)/ Art. 53(4), all Court proceedings regarding Afghanistan are permanently terminated. The PTC’s Afghanistan decision is thus “jurisdictional in ‘nature’ because it determine[d] the existence, nature, and/or scope of the Court’s jurisdiction” once the PTC formally issued its final decision under Art. 15(4).

That argument, moreover, finds at least indirect support in the Court’s appellate jurisprudence. Relatively early in the Lubanga case — December 2006 — the defence argued that the ICC lacked jurisdiction because of “abuse of process” — allegations that Lubanga had been seriously mistreated during a supposed conspiracy between the OTP and the DRC to deliver him to the Court. After the PTC dismissed that claim as without any factual foundation, Lubanga tried to appeal the issue directly to the Appeals Chamber under Art. 82(1)(a). The Appeals Chamber had little trouble rejecting the appeal, agreeing with the PTC that there was no evidence Lubanga had been mistreated. But the Appeals Chamber also said something that can be read as endorsing the kind of argument I’m suggesting might work in the Afghanistan situation:

23. The Statute itself erects certain barriers to the exercise of the jurisdiction of the Court, those set up by article 17, referable in the first place to complementarity (article 17 (1) (a) to (b)) in the second to ne bis in idem (articles 17 (1) (c), 20) and thirdly to the gravity of the offence (article 17 (1) (d)). The presence of any one of the aforesaid impediments enumerated in article 17 renders the case inadmissible and as such nonjusticiable.

24. Abuse of process or gross violations of fundamental rights of the suspect or the accused are not identified as such as grounds for which the Court may refrain from embarking upon the exercise of its jurisdiction. Article 19 of the Statute regulates the context within which challenges to jurisdiction and admissibility may be raised by a party having an interest in the matter, including a person in the position of Mr. Lubanga Dyilo against whom a warrant of arrest had been issued. Jurisdiction under article 19 of the Statute denotes competence to deal with a criminal cause or matter under the Statute. Notwithstanding the label attached to it, the application of Mr. Lubanga Dyilo does not challenge the jurisdiction of the Court.

The implication of these two paragraphs is clear: issues concerning the requirements of Art. 17 are jurisdictional in nature and can be directly appealed to the Appeals Chamber via Art. 82(1)(a); other considerations are not jurisdictional and cannot be appealed. Technically speaking, however, none of the provision in Art. 17 relate to the jurisdiction of the Court — they are all admissibility criteria that the OTP and PTC consider only if the Court’s jurisdiction has been established. Indeed, Art. 17 is entitled “Issues of Admissibility.” Why, then, did the Appeals Chamber describe Art. 17 as erecting “certain barriers to the jurisdiction of the Court,” instead of, say, describing them as “certain barriers to the admissibility of a particular case”? The answer seems to come from paragraph 24: “[j]urisdiction under article 19 of the Statute denotes competence to deal with a criminal cause or matter under the Statute.” That is a wider definition of jurisdiction than the one normally used in the Rome Statute, which refers solely to issues of territorial, personal, temporal, and subject-matter jurisdiction. More specifically, the Lubanga definition treats any “hard” limitation on the Court’s ability to deal with a particular matter as a “jurisdictional” limitation that can be appealed via Art. 82(1)(a) — regardless of whether the Rome Statute specifically deems that hard limitation as jurisdictional.

Given Lubanga, it is difficult to see why the Appeals Chamber would not deem the PTC’s final rejection of the Afghanistan investigation a “jurisdictional” issue that can be directly appealed. Like admissibility issues, the interests of justice are not specifically considered jurisdictional by the Rome Statute. Yet a PTC finding under Art. 53(1)(c) that an investigation is not in the interests of justice no less renders the investigation “nonjusticiable” than a PTC finding that a particular case in inadmissible under Art. 17. If it follows its approach in Lubanga, therefore, the Appeals Chamber should be willing to consider the PTC’s interests of justice finding jurisdictional — and thus directly appealable under Art. 82(1)(a).

Personally, I think this is an argument worth making — especially as the OTP declined to make a similar argument in the Comoros situation largely out of “sincere respect” for the PTC. Something tells me that such respect is no longer forthcoming.