Thoughts on the Afghanistan Appeal

As expected, the OTP has asked the Pre-Trial Chamber (PTC) to grant leave to appeal its refusal to authorise the Afghanistan investigation. I’m in Kiev and don’t have as much time to write as I’d like, so I just want to offer a few quick thoughts on the OTP’s motion, which seeks appeal on three interrelated issues.

First, I think it’s regrettable that the OTP has not sought to directly appeal the Afghanistan decision via Art. 82(1)(a). I recognise the speculative nature of the argument I sketched in this post for why such a direct appeal is possible. But if I were the OTP, I would not want to put the fate of the Afghanistan investigation solely in the hands of the three judges who so badly botched the authorisation decision in the first place. My argument may be legally tenuous, but I can’t get the voice of my contracts professor, a crit, out of my head: as long as the judge thinks you should win your dispute, you simply need to give her a plausible rationale for ruling in your favour. In other words, if the Appeals Chamber wanted to hear the Afghanistan appeal — which seems extremely likely — even a tenuous argument would probably be enough for it to hear the appeal.

Second, although I think the odds are pretty good that the PTC will certify at least the second and third issues, the OTP’s motion is very disappointing. Its reasoning is basically sound, but the motion is just… flat. You’d think the OTP was contesting a highly technical rule governing some minor legal issue — not asking to appeal the most important decision in the ICC’s history. It may well be, as Santiago Vargas Nino speculated on Twitter, that the OTP has adopted such a sterile, affectless tone to avoid antagonising the PTC. But I find it difficult to believe the tone would make a difference. (“Well, we weren’t going to grant leave to appeal, but since the OTP is being so nice about it…”) So I think at least a little righteous OTP indignation was called for — if for no other reason than to shine light on just how awful the PTC’s decision really is.

Third, a bit of credit where credit is due: the motion does quite a good job explaining why the contested issues affect “the fair and expeditious conduct of the proceedings” or “the outcome of any trial” and why “[i]mmediate resolution of the proposed issues by the Appeals Chamber may materially advance the proceedings.” I do find it odd, though, that the motion puts so little emphasis on the fact that the PTC never asked the OTP to weigh in on how interests of justice should be understood and applied. As I noted in my post on appeal strategies, in Ongwen the Appeals Chamber granted an interlocutory OTP appeal for a far less egregious failure to seek submissions from the parties. Yet the motion barely touches on the no-notice problem — and doesn’t even bother to cite Ongwen.

Fourth, I think it was unnecessary for the OTP to seek leave to appeal “[w]hether articles 15(4) and 53(1)(c) require or even permit a Pre-Trial Chamber to make a positive determination to the effect that investigations would be in the interests of justice.” To be sure, the PTC’s statement in para. 35 that its review “must include a positive determination to the effect that investigations would be in the interests of justice” is inconsistent with the plain language of Art. 53(1)(c), which simply requires the OTP to consider whether it might not be in the interests of justice to open an investigation. But although it is possible to see the PTC’s statement as inverting the presumption of investigatibility, I think that’s a distinction without a difference. The fact remains that the PTC must review the OTP’s (negative) determination that there are no “substantial reasons to believe that an investigation would not serve the interests of justice.” Indeed, as I pointed out in the post linked to immediately above, the OTP specifically acknowledged the propriety of that review in its Policy Paper on the Interests of Justice. So I fail to see what the OTP has to gain by appealing the PTC’s sloppy framing of its interests-of-justice review. The problem is how the PTC understood that review’s substance — the second and third appealed issues — not whether that review has to result in a positive or negative determination.

Fifth, the OTP is clearly right — the second appealed issue — that the Appeals Chamber has to be given the opportunity to articulate (1) what factors the PTC should be able to take into account when determining whether it would not be in the interests of justice to open an investigation, and (2) to what extent the PTC is required to defer to the OTP’s assessment of those factors. The latter point is, for me, particularly critical: as I noted in this post, I think the fundamental (and fatal) problem with the PTC’s decision is that it reviewed each and every supposedly relevant factor de novo, instead of showing at least some deference to the OTP’s determination of factors that are at the core of prosecutorial discretion — particularly whether effective investigation is possible and how the OTP allocates its resources. Once again, though, I wish the OTP had shown a bit more fire in defending its structural independence. It hits the right notes in the motion, but only sotto voce.

Sixth, and finally, the OTP does a good job explaining why the majority erred in holding that, when an investigation is authorised, the OTP is limited to investigating incidents specified in its authorisation request (the third issue). Previous PTCs uniformly held otherwise, as I pointed out here. The OTP cites the relevant decisions — and smartly notes that Judge Mindua rejects the majority’s position in his (belated) Separate Opinion.

If I was a betting man, I would wager that the PTC grants leave to appeal on at least the second and third issues. It clearly should, given the standard set out in Art. 82(1)(d). But again, I think it was a mistake for the OTP to put all of its eggs in the paragraph (d) basket. Let’s hope those eggs don’t end up on its face.