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Afghanistan: ICC judges surrender to Americans

The decision of Pre-Trial Chamber II (PTC II) of the International Criminal Court (ICC) to reject the Prosecutor’s request to open an investigation for alleged crimes against humanity and war crimes in the territory of the Islamic Republic of Afghanistan (Afghanistan) seems controversial, in particular with regard to the legal, but above all the political aspects of the decision. This decision raises an important legal question about the combined interpretation of Articles 15(3) and 53(1)(c) of the Rome Statute. Article 15(3) gives the Prosecutor the right to request, on her own initiative, the authorization of an inquiry in the Pre-Trial Chamber. Relevant to this post will be a discussion of PTC II’s interpretation of the countermanding criteria under article 53(1)(c), which requires the Prosecutor not to proceed with an investigation ‘in the interests of justice.’ Further, it will be argued that by refusing to authorize these investigations, the Court was influenced by pressure from the US.

First, by invoking Articles 15(3), as read together with 53(1)(c), to reject the Prosecutor’s request to investigate, the Pre-Trial Chamber overstepped its mandate by usurping the Prosecutor’s powers under Article 53(1)(c). Under this provision, the plain language of the Statute grants powers of review to judges in the event of a decision not to investigate by the Prosecutor. Secondly, even assuming that the Judges had a power to review this criteria, it is argued that the Pre-Trial Chamber applied an extraneous standard in rejecting the Prosecutor’s application without the benefit of the Prosecutor’s submissions on any interests of justice that would militate against opening an investigation.

This post will also argue that taking into account the events that happened before this decision and in particular statements attributed to the US governments which would be seen as intended to intimidate the Court not to authorize an investigation in Afghanistan, there is growing perception that the Pre-Trial Chamber’s decision was influenced by political pressure. It will be concluded that the Pre-Trial Chamber’s decision needs to be reconsidered by the Appeals Chamber in order to salvage the credibility of the Court.

A. Misinterpretation of article 53 by PTC II

In accordance with Art 53(1) of the Rome Statute, the Prosecutor, in making a decision whether an investigation is warranted, is required to take into account whether, (a) … there are reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed; (b) the case is or would be admissible under article 17; and, relevant to this discussion, (c) 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. It is this criteria under (c) that evokes controversy in PTC II’s decision rejecting the Prosecutor’s application to open an investigation. The concept of ‘interests of justice’ does not have a precise definition, either in the Statute or in the Rules of Procedure and Evidence. Indeed, during the preparatory work on the Rome Statute, there was no unanimity on what it would imply. Some state representatives had expressed concern in Rome about its reference in the Statute.[i] Even if, arguably, PTC II had powers to review the interests of justice criteria, its interpretation can be faulted for implying that atrocity crimes may go unpunished if the state involved is uncooperative with the court. This would be inconsistent with the object and purpose of the ICC treaty to “end impunity for crimes within the jurisdiction of the Court.”

On the first point whether PTC II acted ultra vires its powers, the Statute does not give the Chamber the power to veto an investigation on the basis of its perception of the interests of justice. Simply put, it is not up to judges to assess the interests of justice if the Prosecutor has not invoked such a ground as a basis for not investigating. In the case of a positive decision of the Prosecution to investigate, there is no possibility of recourse to the interests of justice, but in the case of a negative decision based on the interests of justice, judges will have to make their own assessment of the interests of justice. For PTC II though, judges have the powers to assess whether a request to investigate satisfies all the conditions laid down in article 53(1)(a) to (c) including the interests of justice criteria. In his concurring and separate opinion, Judge Mindua emphasizes that it is clear from reading art 53(1)(a) to (c) that the Pre-Trial Chamber has the power to be informed by the Prosecutor and to review his or her decision not to investigate. Judge Mindua however wondered whether the Pre-Trial Chamber also had such power to review the Prosecutor’s decision on the basis of the “interest of justice” when the Prosecutor decides to open an investigation.[ii] In his view, the fact that art 15(4) of the Statute does not envisage expressis verbis the “interests of justice “ does not imply that the Pre-Trial Chamber is left powerless to consider that parameter. For him, such determination or review falls within the jurisdiction of the Pre-Trial Chamber.[iii] In arriving at this conclusion, he argues that the absence of a reference to the “interest of justice” is only an oversight.[iv]

Admittedly, the Court’s jurisprudence is not clear on this issue and hopefully clarity can be provided by the Appeals Chamber if leave is granted. Indeed, in some situations, Pre-Trial Chambers have not examined the “interest of justice” in depth.[v] But Judge Mindua’s approach above is a bit far-fetched (would be described as tiré sur les cheveuxin). If the drafters of the Statute had wanted to give power to the Pre-Trial Chamber to consider the “interests of justice” in case of positive decision to investigate, nothing could have been easier than to state so expressly. The Pre-Trial Chamber should not have taken up the role of the states in amending the Statute if in its opinion such a power should have been granted to the judges.

PTC II notes that the current circumstances of the situation in Afghanistan are likely to significantly limit the chances of successful investigations and prosecutions. As a result, the investigation will not meet the expectations of victims and may create frustration and possibly create hostility towards the Court. This conclusion should be made by the Prosecutor himself, not the judges. Nevertheless, this reasoning would give the impression that the Chamber can only authorize an inquiry to the extent that the domestic authorities are willing and able to cooperate. This is precisely contrary to the purpose of the Rome Statute, which aims to imply the Court’s action when national courts fail to investigate and/or prosecute the crimes which fall within its jurisdiction.[vi] Further, it is not clear why PTC II did not invite submissions from the Prosecutor on this aspect before making a decision on it.

B. The American pressure has prevented the court from taking action in Afghanistan (political aspect)

For some time now, the US authorities' statements on the ICC have been ambivalent. On the one hand, they have refused to ratify the Rome Statute and continue to protect their citizens from prosecution before the Court. On the other hand, they have not hesitated to “manipulate” the Court, even to offer their support in certain situations before the Court (Uganda in the Ongwen case, DRC with the Ntaganda case).

In Afghanistan, the decision of the ICC judges seems to put an end to the quest for justice for victims of violence in that country. For the ICC Prosecutor, Fatou Bensouda, the crimes committed in Afghanistan fall under the jurisdiction of the Court. This investigation, which also targets nationals of a powerful state, is also a sign of the independence of the Court. The investigation envisaged was aimed at crimes committed by the various parties to the conflict, including those allegedly committed by American forces and the CIA in the country or in connection with the conflict in Afghanistan. But this decision has not been appreciated by the United States. The U.S. authorities have directly voiced their opposition to the Court’s action in Afghanistan. They refused to cooperate and began a campaign of “sabotage of the Court”. Mike Pompeo, US Secretary of State, said that “the United States will refuse or revoke visas granted to ICC investigators investigating violations committed by US citizens and allies.”[vii] The ICC Prosecutor’s visa was cancelled on 5 April 2019.

In response to this decision, the European Union through the spokesperson of the European External Action Service to the ICC, Maja Kocijancic, “expressed great concern about the measures taken and reiterated its strong support for the ICC (…).” Canada also voiced support for the court stating, “the staff of the International Criminal Court should not be the target for the important work they do.” Switzerland, on the other hand, regretted that the United States had imposed visa restrictions on court officials and threatened new sanctions, “The Court is independent and is not bound only by law. It must not become the target of political measures.” Other states such as Luxembourg, Liechtenstein, Austria, Germany, Belgium, Finland, Slovenia and Sweden have reacted to American pressure against the Court. A joint communiqué was signed by several States Parties in support of the Court: “We express our serious concern about the travel restrictions and threat of additional measures announced by the United States against officials of the ICC. At a time when the rules-based international order is facing increased pressure, we unequivocally reconfirm our support for the ICC.” International organizations such as Human Rights Watch and Amnesty International also condemned the restrictions imposed by the US authorities. It is also strange to see the lack of reaction of African states when they are particularly interested in the ICC’s attitude towards great powers. Because these states have made several criticisms of the Court in this regard: double standards, racism, inequality, etc.

Despite all this support from state parties and international organizations, the ICC judges nevertheless responded by capitulating to U.S. pressure. They were afraid to face the American threat and believed they were saving the institution by compromising their independence. If the judges confirm without reservation that the crimes committed in Afghanistan fall within the jurisdiction of the Court, they assure that such prosecutions will have no chance of success, because of the lack of cooperation of the parties concerned.

President Trump called this decision “a major international victory, not only for these patriots, but for the rule of law. Any attempt to prosecute US, Israeli or Allied personnel for prosecution will result in a swift and vigorous response.” In a motion asking judges to grant him the opportunity to appeal their decision, filed on Friday, 7 June 2019, the Prosecutor emphasizes the impact of such a decision on all future or ongoing cases. She also requests that the Appeals Chamber clarifies the important legal issues raised by the Pre-Trial Chamber’s decision. This clarification, in her view, will benefit the Court as a whole. The threats made by the Trump administration are clearly aimed at the preliminary review of the situation in Palestine. And all those that could, in the future, target leaders of allied countries. National Security Advisor, John Bolton, a fierce opponent of the Court, had already stated in September 2018 that the United States “will let the ICC die by itself. For all intents and purposes, the ICC is already dead to us.” The big powers have the idea that the Court was created to target small states. The American attitude is a concrete example.

In conclusion, the judges of the Court missed the opportunity to show that in Rome, the drafters of the Statute had not set up an international criminal justice system aimed solely at small states. The opening of an investigation in Afghanistan would, on the contrary, have enabled the Court to count, beyond the statements of principle, who its loyal allies were. On the contrary, the Court could have been strengthened if it had agreed to ignore the threats made by the Trump administration. It will therefore be up to the Appeals Chamber to decide, at the appropriate time, to give Afghan victims hope of justice or to confirm the surrender.


[i] See, United Nations doc A/CONF : 183/C.1WGPM/L.2/Add.7

[ii] Concurring and separate opinion of the Judge Antoine Kesia-Mbe Mindua, §.19, ICC-02/17, 31 May 2019.

[iii]Concurring and separate opinion of Judge Mindua, §20. He also invokes Rule 48 of the Rule of procedure

[iv]Id. §21.

[v] See, Pre-Trial Chamber II, Situation in the Republic of Kenya, ICC-01/09-19-Corr, § 63, 31 March 2010.

[vi] OTP, Request for leave to appeal the « Decision pursuant to article 15 of the Rome Statute on the autorisation of an investigation into the situation in the Islamic Republic of Afghanistan, ICC-02/17, 7 June 2019, §35. p. 16.

[vii] Carol Morello, Washington post

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