Limits to Prosecutorial Discretion: The ICC Prosecutor’s Deprioritisation Decision in Afghanistan

[Nada Kiswanson has represented Afghan victims in proceedings before the International Criminal Court in the Situation in Afghanistan since 2019.]

On 27 September 2021, Prosecutor Karim A. Khan decided to focus “investigations in Afghanistan on crimes allegedly committed by the Taliban and the Islamic State – Khorasan Province (“IS-K”) and to deprioritise other aspects of this investigation” (“Deprioritisation Decision”). Extraordinarily, he did not identify the “other aspects”, let alone the depth and breadth of the criminal conduct he decided to deprioritise: thousands of crimes of great brutality against tens of thousands of Afghans allegedly committed by former Afghan government forces, other groups opposing the former Afghan government including Al Qaeda and the Haqqani Network, and international forces, across Afghanistan over nearly two decades. The Prosecutor did not share an intention to resume investigations into these deprioritised aspects, at any juncture. He also did not mention the deprioritised aspects in his simultaneous “Request to authorise resumption of investigation under article 18(2) of the Statute”, which he filed before the Pre-Trial Chamber.

Viewed as, amongst other things, an expression of selective justice and impunity for the most powerful, the Deprioritisation Decision has been criticised by civil society and legal commentators alike (see here, here, here, and here ) The Deprioritisation Decision also evoked anger in victims of perpetrators that do not belong to the Taliban and ISIS-K, and a rift within the victim community is already palpable. While the consequences of the Deprioritisation Decision warrant attention, this post is concerned with its lawfulness and the Prosecutor’s failure to consult with victims before taking a decision of such consequence.

On 12 October 2021, a group of Afghan victims, that I represent, sought leave to submit observations before Pre-Trial Chamber II to the effect that a) the Prosecutor’s Deprioritisation Decision has no legal basis under the Statute and is unlawful, or alternatively, b) that it amounts to a decision not to investigate under Article 53(1) of the Rome Statute, that can therefore be reviewed by the Pre-Trial Chamber. Pre-Trial Chamber II found on 8 November 2021 that “potential victims do not enjoy, as a matter of right, standing to participate in the proceedings pursuant to article 18(2) of the Statute without leave of the Chamber” and denied the victims’ request for leave. As a result of that decision, which is not subject to appeal, the matters raised here are not presently being considered by the Pre-trial Chamber.

The Prosecutor’s Duty to Establish the Truth

The Prosecutor’s duties and powers with respect to an investigation are set out in Article 54 of the Rome Statute. It provides that the Prosecutor shall “extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and, in doing so, investigate incriminating and exonerating circumstances equally” [emphasis added] with a view to establish the truth. Article 54(1) also compels the Prosecutor to “[t]ake appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court”.  In so doing, the Prosecutor must respect the interests and personal circumstances of the victims.

The words “shall”and “must” in Article 54(1) do not allow the Prosecutor to choose the facts and evidence that he will investigate when the jurisdictional and admissibility thresholds have been met. Embedded in Article 54(1) is the obligation to uncover all facts necessary to establish the truth, regardless of the identity of the perpetrators. Article 54(1) encompasses the notion of evidence-led, rather than target-driven, investigations; it is the facts and evidence that must serve as the impetus for the investigation and prosecution of those individuals most responsible for Rome Statute crimes, regardless of their nationality, religion or political affiliation. Nowhere do the legal texts of the Court offer the Prosecution the escape route of refusing to extend an investigation to cover all facts and evidence for reasons of resource constraints. 

Prosecutorial discretion is not unfettered. It must be exercised within the limits of the law, including Article 54(1), and with the Court’s purpose to end impunity in mind. Hence, while the Prosecutor has discretion to independently determine what cases to pursue and individuals to prosecute having impartially collected all relevant evidence, the Statute denies the Prosecutor the power to limit the investigation to facts and evidence relevant to the potential liability of persons belonging to pre-determined, demarcated entities. 

Notably, the Pre-Trial Chamber decision of 8 November 2021 (para. 15) recognised that the “selection of potential cases within a situation under investigation pertains exclusively to the Prosecutor’s purview” [emphasis added] and reminded “the Prosecutor that a proper investigation should focus first on crimes, and then on identifying who the responsible persons of those crimes are. Not only impartiality, but also appearance of impartiality, is a sine qua non requirement for justice to contribute to peace and reconciliation”.

The Prosecutor’s Duty to Effectively Investigate

Having established that the Prosecutor must extend its investigation to all facts and evidence of a situation, the Statute also obliges the Prosecutor to carry out its investigation effectively. The question is whether the Prosecutor’s announcement that it “will remain alive to its evidence preservation responsibilities, to the extent they arise, and promote accountability efforts within the framework of the principle of complementarity” is compatible with the duty to effectively investigate under Article 54(1) of the Rome Statute?

Article 21(3) of the Rome Statute provides that the “[t]he application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights”. International human rights law requires that an investigation be adequate, prompt, and thorough to be effective. The European Court of Human Rights has clarified that to be adequate, “the authorities must take whatever reasonable steps they can to secure the evidence concerning the incident”. One may infer from this that international human rights law requires that the Prosecutor, as the investigative authority under the Rome Statute, actively pursue all relevant evidence from all those who hold it, including all relevant States Parties. Preservation of evidence is not investigation. It is a form of hibernation with the Prosecution essentially functioning as a mailbox only, receiving and saving instead of pursuing and assessing the facts and evidence necessary to identify and prosecute those responsible for heinous crimes, regardless of the group to which they belong.

Reconsideration and the Interests of Justice Justification

The Court’s legal texts do not envisage that the Prosecutor will abandon an investigation into serious crimes before it has even begun. The Statute envisages that the Prosecutor may only cease to actively collect evidence in an initiated investigation where: (1) he has collected all relevant evidence under Article 54(1) and a case is trial-ready but the accused is at large; (2) the Security Council or the concerned State has suspended the investigation or prosecution pursuant to Articles 16 and 18; (3) the Prosecutor has invoked his Article 53(4) power to reconsider a decision whether to initiate an investigation or prosecution. None of these apply in the present situation. None permit the termination of important aspects of any investigation, let alone aspects concerning crimes of great brutality committed primarily on the territory of a State Party against thousands of nationals of that State Party over the course of two decades, due to the scarcity of resources available to the Prosecutor.

Under Article 53(4), “the Prosecutor may, at any time, reconsider a decision whether to initiate an investigation or prosecution based on new facts or information”. The Prosecutor did not invoke this, or any other legal basis, when he decided to deprioritise. Neither has he referred to new developments to suggest that any State is investigating crimes committed by former Afghan government forces, other groups that fought against the former Afghan government, and international forces.

Under Article 53(1)(c) the Prosecutor may determine that “there is no reasonable basis to proceed” with investigation or prosecution because, “taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice”. This provision is not applicable to the current situation because it relates to the moment that the Prosecutor decides to initiate the investigation, not after the decision has been made. Nonetheless, it is the closest the Statute comes to a decision by a Prosecutor not to investigate massive crimes that clearly satisfy the statutory criteria for investigation. If this article is to be a legal basis on which the Prosecutor can rely, then he must under Article 53(1) inform the Pre-Trial Chamber that he is invoking that provision. In the Situation in Afghanistan, the Prosecutor decided to not inform the Pre-Trial Chamber of its Deprioritisation Decision in a formal filing, but instead merely announcing it in a press release on the Court’s website in a public statement. In so doing, the Prosecutor avoided having to provide a legal basis for his Deprioritisation Decision and any potential, consequential judicial review. The Chamber has the power to proprio motu review a reliance on the interests of justice as a justification for ceasing to investigate.

Prior Notification to and Consultation with Victims in the Decision-making Process

Both the legal texts of the Court and Prosecution policy and strategy documents place victims at the center of the Rome Statute system and give them an important role at the investigation stage. Article 54(1)(b) of the Rome Statute provides that the Prosecutor shall “respect the interests and personal circumstances of victims and witnesses […]” when executing his strict obligation to ensure that the investigation is effective. The reference to the “personal circumstances of the victims and witnesses” underscores that the Prosecutor is not expected to conceive, in the abstract, what the interests of victims of a situation in general are. It presupposes that the Office of the Prosecutor will engage directly with the victims to learn what their interests and circumstances are and how the investigation may affect them.

Rule 92(2) of the Court’s Rules of Procedure and Evidence further states that victims must be promptly informed of a Prosecutor’s decision not to investigate or prosecute, and the reasons for that decision. The Prosecutor did not provide prior notification to the victims, nor did it consult them before he made the Deprioritisation Decision public. The value of Rule 92(2) is that it allows the victims the opportunity to react to the Prosecutor’s decision before it becomes formal and inform the Prosecutor of the implications of such a decision on their situation and lives. Hence, while the decision-making power with respect to Article 53 lies with the Prosecutor, the Statute and Rules ensures that the Prosecutor gives due consideration to the victims, their views and situation.

Several policy documents by the Office of the Prosecutor include admirable language on the need to engage directly with victims, and emphasise the important role that victims play during the investigation stage. The Prosecution Policy Paper on Victim Participation asserts that “consistent with article 53(1)(c) and the Prosecutorial Strategy, the Office welcomes direct interaction with victims and victims associations starting at the earliest stages of its work in order to take their interests into account when it defines the focus of its investigative activity”. The Prosecution’s Strategic Plan of 2019-2021 promises to strengthen the Prosecution’s communication with victims and their communities at the investigation stage and an “honest reflection and dialogue” with the victims. In addition, Regulation 16 of the Regulations of the Office of the Prosecutor provides that it will “seek and receive the views of the victims at all stages of its work in order to be mindful of and to take into account their interests”

The proof of the pudding is, however, in the eating. Investigating and prosecuting those most responsible for “heinous crimes that shock the conscience of humanity” is not for the faint-hearted. The task before the Prosecutor is as remarkable as it is difficult, but one must expect of the Prosecutor that he impartially and skilfully delivers on his mandate, duties, and commitments, without compromise, even in the most unconducive of circumstances.