After the startling rejection in April by the International Criminal Court (ICC) of the prosecutors’ request to launch an investigation into war crimes and crimes against humanity in Afghanistan, there has been a flurry of appeals by both prosecutor and victims. Some of these will be heard in December at the Appeals Chamber of the ICC, which could ultimately authorise an investigation. Although the Pre-Trial Chamber judges had accepted that the potential crimes committed were within the court’s jurisdiction, they ruled that the prospects for a successful investigation and prosecution were “extremely limited” and so an investigation would not be in the interests of justice. The Appeals Chamber will consider whether the Pre-Trial Chamber judges were right in that assessment of the interests of justice and, as AAN’s Sari Kouvo and Ehsan Qaane note, also decide whether victims should have a say on what is in the interests of justice.
AAN has closely followed all stages of the involvement of the International Criminal Court (ICC) in Afghanistan. Our previous reporting includes: “ICC rejects war crimes investigation in Afghanistan”, “Ferocious [United States] attack on ICC”, “An ICC delay” and a thematic dossier on “Afghanistan’s War Crimes Amnesty and the International Criminal Court”. This dispatch provides a brief update on the last turn of events, including the recent submissions of appeals briefs by the prosecutor and the legal representatives of the victims.
Summing up developments to date
Afghanistan ratified the Rome Statute in 2003, which is therefore when ICC jurisdiction in Afghanistan begins. A preliminary analysis of the potential for opening a war crimes investigation in Afghanistan began in 2007 and was completed in 2017 – the second-longest analysis in ICC history (after Colombia). A preliminary analysis has three elements: first, the prosecutor assesses whether crimes may have been committed that fall within the ICC’s jurisdiction and whether the possible crimes are grave enough to merit ICC attention (the ICC’s ‘gravity threshold’). Second, the prosecutor needs to show that the state itself is not willing or capable of prosecuting the crimes itself (the ‘complementarity test’). Third, the prosecutor should show there are no reasons why the case would not serve the ‘interests of justice’ (a negative interest of justice assessment). It is, as shall be addressed below, this notion of the interests of justice that is at the heart of the ongoing appeals process asking for an investigation in Afghanistan to be opened. Since this phrase is used, but not defined in the ICC statute, it is the prosecutor and the court that is responsible for interpreting it, aided by tools for treaty interpretation, earlier judgements and a fair bit of scholarship on the topic.
After a long preliminary analysis, Prosecutor Fatou Bensouda concluded that the potential crimes were grave enough for the ICC to investigate and it was unlikely that these would be prosecuted in Afghanistan. That is, she concluded that the ICC gravity threshold had been met and that based on the complementarity test, the ICC did have jurisdiction. So, in November 2017 Bensouda submitted her request to open an investigation to the court’s Pre-Trial Chamber judges (for more details about the request see AAN’s Q&A). The court then invited victims to share their views on whether such an investigation in Afghanistan would serve the interests of justice. Between November 2017 and January 2018, victims were invited to make direct representations to the ICC, or to answer a questionnaire (in Dari, Pashto or English). 97 per cent of the representations by and for victims supported an investigation (680 out of the 699 representations received on behalf of 6,220 individuals, 1,690 families as well as 26 villages) (here is the full report).
It was after reviewing the prosecutor’s submission and the victims’ representations that the three judges of the Pre-Trial Chamber surprised many by rejecting the prosecutor’s request to open an investigation. In a decision made public on 12 April 2019, the judges agreed with the prosecutor on two counts: that there was sufficient evidence that war crimes and crimes against humanity that fall under the ICC’s jurisdiction may have been committed and that neither Afghanistan nor the United States (as a party to the Afghan war), were willing or able to prosecute these crimes. However, they disagreed with the prosecutor’s interpretation that an investigation would serve the interests of justice. Their decision stated (para 96):
…the current circumstances of the situation in Afghanistan are such as to make the prospects for a successful investigation and prosecution extremely limited. Accordingly, it is unlikely that pursuing an investigation would result in meeting the objectives listed by the victims favouring the investigation, or otherwise positively contributing to it.
The Pre-Trial Chamber judges based their assessment on the likelihood of a lack of cooperation from the Afghan government and other state parties, mainly the US, as well as consideration of the volatile political and military situation, and inherent problems of access and security. The Afghan government’s formal stance is that it cooperates with the ICC, but practically speaking, it has mainly sought to convince the ICC about its willingness to prosecute crimes domestically and asked the ICC to delay its decisions on Afghanistan (see here for more details). The US (which is not a State Party to the Rome Statue) has consistently refused to cooperate with the ICC and has also threatened the court with sanctions if it moved forward with the investigation. Most notably, the US revoked the ICC Prosecutor’s entry visa to the US (here and here). Not surprisingly, after the decision not to investigate was announced, some accused the ICC of having giving into US bullying and of baulking at holding the powerful to account (see for example a statement from the Center for Constitutional Rights in New York quoted here). The Pre-Trial Chamber also, perhaps most controversially, brought into consideration the court’s budget constraints, suggesting that with a limited budget the court should priorities investigations with higher likelihood of success.
In June 2019, the prosecutor lodged an appeal against the judges’ decision, with multiple victims and their representatives lodging a separate one (victims’ request for leave to appeal here). The appeals are on two tracks – some go to the Pre-Trial Chamber itself that had made the rejection, the others directly to the Appeals Court of the ICC. The Pre-Trial Chamber accepted an appeal from the prosecutor, which paves the way for an Appeals Court hearing. That will start on December 6.
However, the request to appeal from victims was rejected by the Pre-Trial Chamber judges on technical grounds, with the court primarily arguing that, at this stage of the ICC proceedings, individuals who claim that they have suffered harm are not yet recognised as victims but only as potential victims, therefore victims’ legal representatives cannot appeal on their behalf. It wrote:
… at this stage, individuals alleging having suffered harm […] can only be considered as potential victims, aiming at having their status assessed by the Court in accordance with the relevant statutory instruments; only in the event that the relevant requirements are met, will the applicants be recognized as victims and specific individual procedural rights will be vested in them.
One of the three judges disagreed, Judge Antoine Kesia-Mbe Mindua, who argued in this dissenting opinion:
[T]he fundamental human rights of victims to truth, justice and remedy should be respected by this Court, whose primary purpose is being victim-oriented, which must not be a mere slogan… Even though at the pre-trial stage, before the authorisation for investigating has been granted, there is no suspect or accused yet, victims do exist because international crimes have been committed and the Prosecutor is seeking permission to investigate.
The situation for victims was further complicated by the prosecutor, who on June 12 made a request to the court to dismiss without prejudice the right of appeal from several victims and their representatives, arguing that, because they were making competing legal arguments it would be counterproductive for the court. (The prosecutor was more sympathetic to another move by victims, an amicus curiae; this legal term is used for an expert opinion submitted usually by somebody who has an interest in the case, which is discussed below. For the prosecutor’s observation here and for more details about the victims’ legal representatives and the Pre-Trial Court’s decision, see here).
Even so, the door is not yet closed for victims to be heard by the Appeal Court. In the order from the Appeals Chamber which announced the December 6 hearing, it made clear that the standing of victims to appeal will be considered, which means that if that standing is accepted, their arguments will be considered in addition to those of the prosecutor’s. (See here for a brief to the Appeals Court from multiple victims and their representatives).
In addition to the requests for leave to appeal by victims and their representatives, in July 2019, two groups of Afghan and international human rights organisations submitted a separate Amicus Curiae. Such a submission is possible according to Rule 103 of the Rules of Procedure and Evidence and article 15 of the Rome Statute of the ICC. (2) The groups submitted their Amicus Curiae directly to the Appeals Chamber and the Pre-Trial Chamber (see their request here). The submissions argued that the Pre-Trial Chamber had erred in law and in fact (see, ICC-02/17/84, ICC-02/17-35). To provide weight to its Amicus Curiae, one of the groups developed a questionnaire and interviewed around 300 direct and indirect Afghan war victims around the country who were asked to define the interests of justice as well as to share their views about the authorisation of an investigation by the Appeals Chamber into the situation in Afghanistan. The process was started in July 2019. According to member of the group Hadi Marifat all of the interviewees still believe that the ICC intervention is in the interests of justice: “Only three or four interviewees have lost their trust in the ICC due to the Pre-Trail Chamber’s decision made on 12 April 2019, to not authorize the prosecutor’s request to commence an investigation.”
What are the main questions before the Appeals Court?
As noted, the status of victims’ representations is still moot, but the prosecutor’s appeal will be heard by the Appeals Court, with her main arguments already clear from her submission. She makes two arguments: first, the Pre-Trial Chamber was wrong to make a positive determination of the interests of justice in the Rome Statue article 53 and article 15 and; second, the Pre-Trial Chamber should not have made an interests of justice assessment at all. That is, the prosecutor’s standpoint is that the interests of justice criterion should be interpreted in line with the negative wording of the article. (3) So while the prosecutor always needs to provide compelling evidence that a case falls within the court’s jurisdiction and meets its gravity threshold, the interests of justice criterion is a negative test. That is, the prosecutor does not need to show that an investigation is in the interests of justice. Rather, she should proceed with an investigation unless there are compelling reasons that a prosecution would not serve the interests of justice. The prosecutor argues that the Pre-Trial Chamber judges have misinterpreted the treaty by turning the interests of justice test into a positive test, requiring the prosecutor to show that a case serves the interests of justice. It also puts the ICC on a dangerous path, she argues, as the overall purpose of the treaty can be defeated by petty considerations of prosecution success rates and cash flows to the court.
The victims’ appeal brief focuses on their right to appeal and on the fact that the Pre-Trial Chamber heard neither the prosecutor nor victims when deciding that opening an investigation was not in the interests of justice. It also echoes the prosecutor in arguing that the Pre-Trial Chamber acted outside its remit when conducting an interests of justice assessment and that procedurally, the Chamber should have allowed the Prosecutor and the victims to weigh in on the interests of justice assessment. It argues that the Chamber was wrong as regards law and fact, by largely ignoring victims’ interests in justice in its assessment.
The appeal hearing is scheduled for 4-6 December at the ICC in The Hague. The Appeals Chamber consists of five judges. (4) Besides addressing the important question about whether the prosecutor can, after all, open an investigation into the situation in Afghanistan, the Appeals Court will also decide on whether the victims that have also appealed the decision have the right to do so. There is, however, no deadline for the appeals court’s judgement. Given the significance and the high political interest in the case, it is likely that the judges will consider their decision for some time.
The appeal hearing coincides with the annual meeting of the Assembly of States Parties, the management, oversight and legislative body of the ICC. This annual meeting tends to draw considerable interest in the ICC, including by media and civil society. The Appeals Chambers deliberations regarding Afghanistan are likely to sharpen this interest.
A balancing act between pragmatism and accountability
The ICC engagement in Afghanistan is fascinating from an international law perspective. As it was the ICC prosecutor that initiated the preliminary analysis into Afghanistan, her engagement shows the potential of an independent international prosecutor for war crimes to decide what situations merit the ICC’s attention. However, the Pre-Trial Chamber’s decision not to allow an investigation, because it considered that an investigation would be too complicated in a situation where there is, inter alia, little state cooperation, also shows how easily circumscribed this independence is by political concerns. If the ICC’s engagement in Afghanistan ends up showing that the interests of victims have little weight compared to those of states – and that it is possible for states to bully their way out of ICC scrutiny, it will be a thoroughly depressing precedent for victims of war crimes and crimes against humanity.
Reading the prosecutor’s and the victims’ appeals briefs, it is easy to be convinced that the Appeals Chamber can do nothing but allow the prosecutor to open an investigation. However, this is not so clear-cut when digging into some of the existing information about the drafting of the Rome Statute and the scholarship on the interests of justice criterion.
It is, first, important to note that allowing the prosecutor to initiate cases herself was not favoured by all of the drafters of the Rome Statute. While some argued that the time was ripe for an independent prosecutor, other states noted that, for political or pragmatic reasons, it would be better that cases were only referred to the court by States Parties and the United Nations Security Council. The underlying political rationale for this was that this would provide states with some control over the court.
The pragmatic rationale – which is important – was that investigating war crimes in complex and that hostile contexts often make this not an easy task and that too many failed investigations and prosecutions might overtime undermine the legitimacy of the court and thereby also its overall purpose. In the investigation phase, when the prosecutor gathers evidence against specific perpetrators, the cases tend also to be radically narrowed down, as the prosecutor will only prosecute perpetrators for crimes for which there is sufficient evidence. It is then not far-fetched to suggest that if the prosecutor can only bring a fraction of the perpetrators to account for a fraction of the crimes that they have committed, this might obscure, rather than support the interests of justice in the original meaning of the Rome Statute. It might also undermine peoples’ confidence in the ability of the ICC to bring justice.
Including a reference to the interests of justice as one criterion for when the ICC prosecutor should open an investigation was already discussed with some concern when the Rome Statute was drafted. The interests of justice was also not defined by the drafters of the Rome Statute. They wilfully left a lot of room to the prosecutor (and the judges) to interpret what was in the interests of justice. This said, what is clear from the wording of the Rome Statute is that the prosecutor and the court are not asked to show that investigations and prosecutions will serve the interests of justice, they are only asked to refrain from prosecution when a prosecution would not serve the interests of justice. While this distinction may at first glance seem banal, it is not. The wording does clearly suggest that the presumption should be that prosecutions are in the interests of justice. The prosecutor has also consistently sought to promote a definition of the interests of justice that is wide and victim-centred. However, Gilbert Bitti, who contributed to the negotiations of the Rome Statute and is now a Senior Legal Adviser to the Pre-Trial Division of the International Criminal Court (ICC), has noted that during the drafting process, the risks of the inclusion of an interests of justice criterion were clear:
Delegations expressed concerns throughout the negotiations in Rome that (powerful) States may push the Prosecutor, by threatening for example not to cooperate with the Court, to use the ‘interests of justice’ criterion in order not to start an investigation or a prosecution for the purposes of protecting their own nationals. Other (less powerful) States may not be in a position to push the Prosecutor to use the “interests of justice” to their advantage in a similar way.
This risk of this criterion exposing the inequality between states may certainly have been the case for Afghanistan, where the US has vehemently opposed an ICC investigation into alleged crimes committed by US forces and the CIA in Afghanistan.
If the ICC judges in the appeals court, like the judges of the Pre-Trial Chamber, reject the prosecutor’s appeal or even authorise a limited investigation with taking the lack of state cooperation and political pressure into account, it could mean that victims’ interests and the interests of justice, were once again, sacrificed for state interests. However, the Appeals Court judges may take a very different view from the Pre-Trial Chamber and authorise the broad investigation requested by the prosecutor into war crimes and crimes against humanity by the Taleban, Afghan and international forces.
(1) Article 13 of the statute also gives authority to the ICC’s state parties, like Afghanistan, as well as to the UN security council to send a situation to the prosecutor for investigation. The prosecutor, however, needs an authorization from the Pre-Trial Chamber before commencement of any investigation.
(2) The first group who submitted an amicus is composed of Transitional Justice Coordination Group (TJCG), Arman Shahr (called ‘Open Asia’ outside Afghanistan) and International Federation for Human Rights (FIDH). The members of the second group were the Afghanistan Human Rights and Democracy Organisation, the Afghanistan Human Rights Organisation, the Afghanistan Forensic Science Organisation, the Feminine Solidarity with Justice Organisation and the Afghan Victims’ Families Association.
(3) The 77-page appeal focuses largely on how articles 53 and 15 of the treaty should be interpreted. Article 53 focuses on when the prosecutor can initiate an investigation, with para 1c stating that the prosecutor should not initiate an investigation in cases where “…there are substantial reasons to believe that an investigation would not serve the interests of justice”. The prosecutor’s interpretation of article 53 and the meaning of the notion of the interests of justice included in the appeals brief largely draws on an ICC policy paper adopted in 2007. Article 15 para 4 provides the Pre-Trial Chamber with the authority to examine the prosecutor’s request to open an investigation in the cases where the prosecutor herself has initiated the case.
(4) They are: Judge Piotr Hofmański, Presiding judge, Judge Chile Eboe-Osuji, Judge Howard Morrison, Judge Luz del Carmen Ibáñez Carranza and Judge Solomy Balungi Bossa.
This article was last updated on 9 Mar 2020