Case ICC-02/17-138

Introduction

This article intends to examine the implications of the Appeals Chamber judgement1 rendered on 20 March 2020 at the ICC. The AC revoked the decision of the Pre-Trial Chamber II which denied to grant the prosecutor’s
request to proceed with an investigation into war crimes and crimes against humanity perpetrated in Afghanistan and on the territory of non-state parties to the Rome Statute. Afghanistan has been party to the ICC since February 2003. The central issue of this decision concerns the ‘interests of justice’ debate, which has generated a considerable amount of controversy both in the PTC and in the AC. This issue was also the basis for the prosecutor’s appeal. This article analyses the contentious factors discussed in the PTC’s findings and outlines the inherent logic behind the AC’s decision to overturn the ruling. Furthermore, this assignment discusses the speculation surrounding ICC’s jurisdiction in cases involving non-state parties to the Rome Statute.

Facts

The alleged perpetrators outlined in the prosecutor’s request involved the Taliban, Al Qaeda, Afghan Forces, US military personnel and the CIA. The PTC denied this request because it opined that it would not be in the interests of justice to pursue the investigation further. The prosecutor outlined two grounds for her appeal: The PTC had erred in seeking to make a positive determination of the interests of justice of the investigation and it also abused its discretion in assessing this issue. The AC accepted these grounds and held that the PTC had erred in its ruling by misinterpreting its role in matters concerning Article 15(4) of the Statute, by deciding that it was bound to assess the factors laid out in Article 53(1). The AC rebuked the PTC for acting beyond its power of judicial authority and by issuing a judgement which was “cursory, speculative and did not refer to information capable of supporting it.”

The Interests of Justice Dilemma

The discretionary nature of Article 15 of the Rome Statute provides that a prosecutor may initiate investigative proceedings proprio motu. However, Article 15(4) provides that the PTC has limited power when assessing a prosecutor’s request and does not make any reference to the interests of justice. The PTC is merely required to determine whether there is a reasonable factual basis to proceed and whether the case falls within the parameters of the Court’s jurisdiction.

    Contrary to its role, the PTC assessed the interests of justice of initiating investigative proceedings. For example, the financial burden that the investigation would have on the ICC’s finite resources was considered to be sufficient to deny the request. Similarly, the feasibility of the investigation and likelihood of success was also considered. The PTC denied the request as it deemed the case would be unsuccessful and this would have an adverse impact on the victims. Hence, it held that it would not be in the interests of justice to pursue the matter and the investigation should be abandoned ab initio. There are several problems with this form of legal reasoning. Most notably, if feasibility is considered as a separate factor by the PTC, this could potentially “prejudice the consistent application of the Statute and might encourage obstructionism to dissuade ICC intervention.”6 However, as Harvard Professor Alex Whiting notes, this form of legal reasoning may be the beginning of an effort by ICC judges “[t]o orient the court’s very limited resources towards investigations where there exists some...prospect of success.” This sends a very dangerous message for two reasons. Firstly, if the investigation appears to have low prospects of success, criminals may escape unscathed from the ICC’s judicial grasp. Secondly, it transmits a very negative message to the victims themselves. By abandoning the pursuit of legal justice, victims will lose confidence in the ICC. Therefore, if the AC had not overturned the decision, this would have had an adverse impact on the future of the ICC.

The AC judgement is also controversial because there is stark contrast and divergence in the ICC case law when dealing with issues pertaining to the interests of justice. For example, in Kenya  the PTC held that it had, “ [a] supervisory role over the initiative of the prosecutor to proceed with an investigation.” This approach was also upheld in subsequent ICC judgements. In addition, the interests of Justice debate was also considered by the PTC when it held that the political landscape in Afghanistan would impede investigative proceedings and make it difficult to secure, “cooperation from relevant authorities.” Conversely, in Burundi10, the PTC authorised the decision to investigate despite the fact that many sources indicated that the Government in Burundi had, “ interfered with, intimidated or harmed victims and witnesses.” Therefore, hypocrisy prevailed in the PTC decision when it denied the prosecutor’s request using similar reasoning. Furthermore, the PTC’s misguided ruling has raised skepticism that the PTC capitulated to political pressure from the Trump Administration. Many have argued that the US had an influential impact on the PTC’s decision as several ICC justices had their US visas revoked following the prosecutor’s request to open an investigation.

The Jurisdiction of the ICC and the Interests of Justice Debate

Another disputed issue is whether the prosecutor’s request is limited only to incidents outlined in the request or whether acts committed outside Afghanistan could constitute as war crimes, if the victims of such allegations were captured outside the State. The PTC held that the prosecutor would only be permitted to investigate incidents referred to in the request. In contrast, the AC noted that the prosecutor’s investigative powers were limited when the request was formulated and the prosecutor was not in a position to identify accurately every incident which may have transpired. The AC held that such a restrictive approach would, “[e]rroneously inhibit the prosecutor’s truth-seeking function.” The AC also reaffirmed that such a requirement is not necessary to fulfil the purpose of Article 15(4).

Controversy also arises regarding the ICC’s jurisdiction over non-state parties. The prosecutor’s request stipulated that the CIA used detention centres for interrogating Al Qaeda suspects in Afghanistan, Poland, Romania and Lithuania. These States have all ratified the Rome Statute. Therefore, the prosecutor argued that that these incidents should also be investigated. The PTC disagreed and opined that it would be contrary to the scope of Common Article 3 of the Geneva Convention to investigate incidents which took place outside the boundaries of the State upon which the armed conflict was taking place.

Once again, the PTC overstepped its role by incorrectly interpreting the scope of the investigation as Article 12(2)(a) of the Rome Statute provides that the ICC has jurisdiction over non-State parties. The AC held that “the place of capture... may be a relevant factor for analysis, but it does not settle the matter.”Scharf argues that the PTC’s legal reasoning was “un-founded.” Moreover, Schabas notes in terms of territoriality, that if a State may exercise jurisdiction over foreign nationals for crimes committed on its territory, this suggests that a transfer of jurisdiction to an international tribunal could also be conceivable.

Conclusion

The AC judgement is a significant milestone because it is the first time that an appeal on the authorisation of an investigation under Article 15(4) of the Statute was successfully upheld. This historic judgement has also laid the foundation for the US taking accountability for the alleged perpetration of war crimes committed during the armed conflict in Afghanistan. This judgement also clarifies the discretionary power of the prosecutor to initiate investigations proprio motu and the scope of investigations involving non-state parties. In summary, the PTC transgressed its role by assessing irrelevant factors which coloured its decision- making abilities. In other words, the PTC judgement was ultra vires. However, despite the controversy surrounding the case, the AC has restored faith in the ICC’s capacity to uphold the rule of law.