A Neo-Colonial Court for Weak States? Not Quite. Making Sense of the International Criminal Court’s Afghanistan Decision

The International Criminal Court (ICC)’s involvement in Afghanistan has received a great deal of attention ever since the Prosecutor announced she would seek to initiate an investigation in November 2017. Rightly or wrongly, what made this inquiry so contentious was not the suffering of millions of Afghan people, but rather the alleged war crimes of a few dozen American nationals. Judging by most of the commentary, analysts worried primarily about one question: would the ICC be able to hold to account powerful states and their citizens?

Yesterday’s decision does not inspire confidence in that regard. Pre-Trial Chamber II unanimously agreed that an investigation into crimes against humanity and war crimes allegedly committed on the territory of Afghanistan was not in the ‘interests of justice’. This came as a surprise, to put it mildly. Against the backdrop of the ICC’s evolving institutional dynamics, this post will argue that, while the Afghanistan decision should not be viewed simply as a capitulation to great power interests, it foreshadows a reckoning with various assumptions that have guided the Prosecutor’s work and civil society support for the Court since 2003.

Whose Interest in Justice Matters?

The Afghanistan PTC Decision will be remembered both for its outcome and the unexpected invocation of ‘interests of justice’ to justify not opening an investigation. As noted above, while there has been an abundance of commentary on the ICC’s Afghanistan inquiry, I am not aware of any scholar who has tried to anticipate this specific argument. In fact, aside from prudential arguments about the risks of antagonizing the US, very few scholars have tried to make any serious legal case under the Rome Statute for declining to open an investigation in Afghanistan.

Partly, this reflected an unusual academic consensus about the legal requirements underpinning Article 15 authorization decisions, which seemed to leave the judges with no choice but to open an investigation. The Rome Statute’s ‘interests of justice’ clause generated much debate before and after Rome, but it had essentially disappeared from view after 2007, when the Prosecutor issued a policy paper on that topic. In that document, interests of justice were defined so narrowly as to make the concept irrelevant to the Prosecutor’s decision-making. Notably, the Prosecutor had argued that, given the exceptional nature of the ‘interests of justice’ clause, there was a presumption in favor of prosecution when the Rome Statute’s other admissibility criteria – complementarity and gravity – were met.

Put differently, until yesterday, most observers took for granted that prosecution of international crimes was ipso facto in the interests of justice. This will now likely change. If nothing else, the Pre-Trial Chamber has probably re-opened the ‘interests of justice’ can of worms, introducing a host of non-legal questions into the ICC’s decision-making process. Citing the Rome Statute’s lack of guidance, the PTC points to at least three different factors that should shape the ICC’s exercise of jurisdiction going forward: 1) the time elapsed between the alleged crimes, investigation and putative prosecution; 2) the prospects of cooperation with actors who have access to evidence; 3) the impact of failed prosecutions on victim expectations (paras. 87-96). The judges even cite budgetary constraints as a justification for not trying to prosecute international crimes, concluding that “…far from honouring the victims’ wishes and aspiration that justice be done, [authorizing an investigation in Afghanistan] would result in creating frustration and possibly hostility vis-a-vis the Court and therefore negatively impact its very ability to pursue credibly the objectives it was created to serve.” (para 96).

I will leave it to others to discuss the dubious, in my view, legality of the PTC considering ‘the interests of justice’ clause in the first place (see Dov Jacobs’ excellent post). Suffice it to say, that this decision relies on a host of non-legal, prudential factors to explain why investigation and prosecution is not in the interests of victims. This may well be a first for any international criminal tribunal. After analyzing the Rome Statute’s legal requirements and finding that Afghan and US authorities have not made a good faith effort to provide accountability (paras 70-86), the judges simply shrug their shoulders and conclude that the low likelihood of cooperation from state actors means that it is fine to not even try to fight impunity.

Not only does this contorted logic reward non-cooperation from states and encourage bad behavior, it suggests that victims are better off not trying to secure accountability if the cards are stacked against them… lest their hopes of justice be dashed! It is hard to believe any victim or civil society advocate will find this logic about the ‘interests of justice’ remotely persuasive, ignoring as it does that all human rights advances are hard fought wins.

Skeptics have already begun to question whether this decision has anything to do with the interests of victims or justice. We may never find out whether the PTC succumbed to pressure from the Trump administration, but there is certainly a perception that, in avoiding a clash with the world’s superpower, this decision serves primarily the ICC’s own institutional self-interest. This conclusion is, of course, disconcerting to many international justice advocates, but the PTC’s willingness to so openly consider non-legal factors conditioning the ICC’s exercise of jurisdiction points to an emerging institutional dynamic that everyone – proponents, critics and civil society – should take very seriously.

An Institutional Tug of War for Influence

The Afghanistan Decision comes on the heels of the controversial Bemba and Gbagbo acquittals (see here, here, here and here), in which the Prosecution’s investigation practices prompted scathing rebukes from different chambers. Aside from the PTCs’ unconventional views on interests of justice, one of the more interesting aspects of yesterday’s decision are the not so subtle ways in which the judges attempt to assert their authority over the Prosecutor. Much of the analysis (paras 31-35) about the PTC’s role in authorizing proprio motu investigations will sound familiar to experts, but I would suggest there is an important shift in tone. Whereas in the Kenya authorization decision the PTC was ostensibly protecting the Court from ‘unwarranted, frivolous or politically motivated investigations’ (para. 31), the Afghanistan decision talks about ‘filtering out’ investigations which are “likely to ultimately remain inconclusive” (para. 33).

Likely to ultimately remain inconclusive? It is difficult to see how the PTC wants to operationalize such a vague standard for declining proprio motu investigations, though it certainly invites almost unfettered judicial control of the Prosecutor’s actions. With 10 preliminary examinations ongoing on 5 different continents and a growing number of failed prosecutions in the ICC’s 10 active situations, it appears the judges are sending a clear message that they intend to subject the Prosecutor’s work to much greater judicial scrutiny going forward.

The PTC’s troubling dicta on what constitutes a situation only reinforce this perception. Although the judges, of course, decline to authorize an investigation in Afghanistan, the PTC nevertheless felt it necessary to point out that it “did not share the views of the Prosecution” on which acts, incidents, groups or persons can be prosecuted within a situation. Arguing that a situation should be narrowly construed to encompass only those crimes which have specifically been approved for investigation, or which have a ‘close link’ to such crimes (para. 41), the PTC emphasizes that future acts (occurring after the issuance of an Article 15 decision) would expressly be excluded from the scope of a situation thus understood (para. 68). In the words of the PTC:

[t]he filtering and restrictive function of the proceedings… implies that the Chamber’s authorisation does not cover the situation as a whole, but rather only those events or categories of events that have been identified by the Prosecution. To conclude otherwise would be tantamount to equating the authorisation to a blank cheque…

While there is a legitimate debate to be had about the scope of situations under the Rome Statute, this probably goes too far in circumscribing prosecutorial discretion. More importantly for the purpose of this post, this entire discussion as well as the Mavi Marmara litigation underscore the growing rift between the Prosecutor and certain ICC judges about who holds ultimate power in determining which cases are investigated, prosecuted and tried in The Hague.

Conclusion

The response to the ICC’s Afghanistan decision has been swift, and it has been scathing. Employing language we usually associate with critical scholarship, ICC supporters are openly talking about the politics of international criminal justice and the nefarious role the Trump administration may have played in this decision (see Amnesty International, Human Rights Watch, FIDH). To be sure, civil society is unlikely to embrace the neo-colonial critique of the ICC, but there is a clear sense that the judges may have bowed to political pressure, with potentially grave consequences for the ICC’s legitimacy.

I disagree with the PTC’s approach and arguments, but I think it is worth stressing that there is a slightly less cynical explanation for this decision. As noted above, the ICC is currently involved in 20 countries, and has yet to ever close a situation. What this means is that, by 2030, the ICC will be investigating in at least 20 countries, having tried a dozen people and convicted perhaps half as many. Whether we call this a crisis or something else, there seems to be an urgent need to discuss whether this is a viable way forward for the Court and victims around the world.

To be clear, the PTC’s Afghanistan decision was not the right place to ventilate what is arguably a growing philosophical disagreement within the ICC about the institution’s future priorities. But difficult discussions are never easy, and radical change is often only possible in moments of profound disenchantment. If there is a silver lining to the PTC’s Afghanistan decision, it is probably that the international criminal justice community will unite in condemning this decision. That presents a rare opportunity to think creatively about the future. Short of embracing the neo-colonial critique, if we want to avoid further Afghanistans, we must propose an alternative that recognizes the ICC’s very real limitations.