This is a two-part post on the PTC’s Afghanistan non-investigation decision. Part I discusses the PTC’s analysis of the interests of justice requirement. Part II will focus on the decision’s broader implications.
The Decision of Pre-Trial Chamber II of 12 April 2019 to turn down the Prosecutor’s 20 November 2017 Request for authorization to commence an investigation in Afghanistan came as a shock to many observers. It is the anti-climax of more than a decade-long preliminary examination by the Office of the Prosecutor and one-and-a-half years of judicial deliberations. Although it was always within the range of possibilities that the PTC would decline, it was the least expected outcome. In her Request, the Prosecutor had shown—and the Chamber agreed—that there existed reasonable grounds to believe that crimes within the ICC’s jurisdiction had been committed in the situation since 1 May 2003 and the potential cases would have been admissible before the Court. The judges differed from the Prosecutor in one decisive respect on which the rejection essentially—and problematically—rests: the opening of the investigation would not have satisfied Article 53.1.c of the Statute, i.e. there were substantial reasons to believe that the investigation would not serve the “interests of justice”.
It is far from clear whether the Prosecutor will be able or indeed willing to appeal the PTC Decision (my preliminary answer is no on both points). Moreover, Article 15.4 authorizes the Prosecutor to file a new request ‘based on new facts or evidence regarding the same situation’. While this could be the way to resuscitate the procedure, it is uncertain whether the OTP would consider using it – or whether ‘new’ facts or evidence could show a change in relevant circumstances (see para. 94) and reverse the PTC’s ‘interests of justice’ assessment. The other avenue discussed on Twitter would be for one or more of the States Parties to refer the situation in Afghanistan to the Prosecutor, thus enabling her to circumvent the authorization obstacle. The problem would be to find such a State Party, that would be prepared to take on the wrath of the US. Palestine and Venezuela come to mind but the discussion whether hinging this investigation on those states’ referral is optimal or desirable is rather left for another day. As matters stand, it is more likely than not that the PTC’s decision has effectively sealed the fate of situation in Afghanistan before the ICC.
‘Crisis’ has been the buzzword courtesy the ICC for some time now. But this is not your average ‘crisis’. Many of the flaws in the PTC’s decision have been helpfully dissected by Heller, Jacobs, Labuda, Rona, de Vos and other commentators. However, the ruling is not just unnerving on multiple counts of form and substance. A thinly-guised surrender to power politics, it is nothing short of a judicial meltdown. Its significance and implications for the institution and international criminal justice more generally are profound, fitting neatly in the patterns decried in the ‘radical critiques’ of international criminal law.
This (first) part of the post shows how the PTC’s treatment of the ‘interests of justice’ requirement went astray, bringing legally irrelevant desiderata within the judicial determination. Part II of the post offers a few unconsoling thoughts on the impact of the Afghanistan decision on the ICC’s credibility and what it may bode for the future of international criminal justice. Read the rest of this entry…