Part II of this post addresses the larger implications of the PTC’s decision. For part I discussing its treatment of the ‘interests of justice’, see here .
Justice and pragmatism
In my previous post, I argued that, as a result of the Pre-Trial Chamber’s incorrect interpretation of the ‘interests of justice’ standard, extra-legal considerations controlled the outcome of its determination. This part shows why this is problematic in terms of the legitimacy of the Court and of the broader project it symbolizes.
But first, is there no silver lining and nothing to defend in the PTC’s decision to deny authorization of the investigation in Afghanistan? As noted elsewhere, the ‘crises’ in international criminal justice tend to consolidate members of the epistemic and support communities around the institutions while also bringing the existing ideological and other fault lines into sharper relief. There is no uniform consensus on the PTC decision either.
Some (mostly US-based) commentators suggest that the PTC’s decision on the Afghanistan probe was overdetermined, understandable, and thus, in a way, justifiable. After all, it was a well-known fact—even prior to the unequivocal statements by John Bolton in September 2018 and Mike Pompeo in March 2019—that the US would not tolerate the prospect of the ICC Prosecutor investigating the conduct of its armed forces and CIA personnel. Most recently, the US government’s hostility towards the Court took the form of overt pressure and visa restrictions meant to dissuade the ICC staff from (and punish it for) pursuing that course of action. The judges’ blocking the investigation is not merely caving to pressure, the argument goes, but it is ‘caving to reality’: a prudent step towards de-escalation and much-needed institutional adjustment (see Bosco and Buchwald). This is what the triumph of pragmatism over the idealistic and over-reaching attempts to bring accountability for the alleged crimes in Afghanistan looks like. It is warranted by the need for the Court to better prioritize its work, focus on the more tangible goals, and direct its scarce resources to situations ‘where there exists some meaningful prospect of success’ (Whiting). This makes sense, particularly considering the Court’s poor track record in terms of securing convictions over the past years in situations seemingly less complex than that of Afghanistan.
It may well be that the Afghanistan investigation would not have led to prosecutorial success or even any cases at all. There is also no doubt that the opening of the investigation would have led to further escalation with the US and seriously complicated the situation for the Court and for its employees. It is also highly likely that the Prosecutor would continue facing serious difficulties obtaining cooperation of the relevant actors in the situation – the factor of some pertinence to the interests of justice. That said, this remains an assumption – and a questionable one at that when it comes to the investigation of the Taliban crimes.
The realist arguments are not patently misconceived or groundless (or at least, not all of them). The problem is that, even assuming arguendo that those concerns may be considered as validly falling within the ‘interests of justice’ (which they arguably may not), they are still hard to accept from a normative and legal policy angles. Importantly, as already noted in the debates, the non-authorization of the Afghanistan investigation effectively rewards non-cooperation and political pressure by states.Furthermore, while it might be more appropriate for those considerations to inform the discretionary decisions of the Prosecutor, it is disconcerting to see their trickling into the key paragraphs of the PTC Decision (paras 91-95). As the more diplomatic Alex Whiting put it, ‘[t]he ICC judges grappled with these realities more openly than we’re often accustomed’.
The implications of this are consequential and problematic.