Not just another ‘crisis’: Could the blocking of the Afghanistan investigation spell the end of the ICC? (Part I)

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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.  

Judicial meltdown

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.  

‘Interests of justice’ or ‘interests of the ICC’?
The PTC reminds us that the assessment of the ‘interests of justice’ requirement ‘must be conducted with the utmost care, in particular in light of the implications that a partial or inaccurate assessment might have for paramount objectives of the Statute and hence the overall credibility of the Court’. (para. 88). It is therefore particularly ironic that its own interpretation and application of this parameter is so fundamentally flawed and has led to those very implications.

My quarrel with the PTC’s ‘interests of justice’ determination revolves on two points: the content it gives to this notion and the standard of proof it uses. Regarding the former, the PTC decision hollowed this notion of its normative content, supplanting it with extraneous considerations and thus effectively misapplying it. Although the criterion of ‘interests of justice’ is rather vague, it is not devoid of statutory meaning, contrary to what the Chamber claims (para. 89). Article 53.1.c states that ‘the gravity of the crime’ and ‘the interests of victims’ should be two factors taken into account when making this determination.

In its Request, the OTP addressed these elements at some length. It devoted no less than 28 paragraphs to the issue of gravity of potential cases to arise from the situation against the members of the Taliban and affiliated groups, the Afghan National Security Forces and the members of the US military and the CIA (Request, paras 336-64). Even though the PTC acknowledges the grave nature of the alleged crimes as part of its admissibility assessment (Decision, paras 84-86), this consideration perplexingly neither comes back in, nor has any impact on, its treatment of the ‘interests of justice’ in section VII of the Decision. In fact, the word ‘gravity’ occurs only once in that section, and even then that was only in the PTC’s statement of the text of Article 53.1.c.

Turning to the second criterion indicated by Article 53.1.c, the ‘interests of victims’, the OTP’s request similarly provided detailed information on the high level of support for the investigation among victims, bolstering its determination that the investigations would be in the ‘interests of justice’. This information was collected through direct consultations with victims’ organisations and in the form of communications and other sources (see paras 365-371).

Moreover, the PTC had the benefit of receiving victim ‘representations’ pursuant to Article 15.3 and Rule 50 (by the PTC’s own count, a total of 794 submissions on behalf of over 6,220 individuals, 1,690 families, and further 10 million persons and 26 villages (Decision, para. 27 and fn17)). These representations were collected in the difficult security circumstances, including in some of the least accessible locations in Afghanistan, over the short period of December 2017—January 2018. Although the Chamber noted that those ‘usefully complement and supplement’ the OTP’s submissions (para. 28), it is not evident from the Decision whether the PTC gave victim representations due consideration and weight when reaching its determination. In fact, one may wonder what sense it makes to have the resource-intensive victim participation procedure under Article 15(3) – other than using it as a façade to convey that victims’ views matter while ignoring them all the same.  

Instead of taking the elements of ‘gravity’ and the ‘interests of victims’ into account, the PTC reframed the ‘interests of justice’ in a way that allowed it to sidestep the language of Article 53.1.c in favour of the more pragmatic and expediency-based concerns not contemplated by the provision, such as ‘the likelihood that investigation be feasible and meaningful under the relevant circumstances’ (para. 35), ‘its [the ICC’s] organisational and financial sustainability’ (para. 88), and resource constraints (para. 95). The Chamber states openly that ‘focussing on those scenarios where the prospects for successful and meaningful investigations are serious and substantive is key to its ultimate success’ (para. 90). Clearly, the ICC’s own ‘ultimate success’ is the Chamber’s primary concern here. The PTC found that the prospects of a successful investigation and prosecution were ‘extremely limited’ and pursuing them would be unlikely to meet the victims’ objectives (para. 96). Apart from the fact that this was not what victims apparently thought, this is not the same as to show that the investigation as such would not be in the interests of justice. This leaves no doubt that the PTC’s analysis conflates and supplants the ‘interests of justice’ with the narrow institutional ‘interests of the Court’. Whatever those perceived interests may be – the improved conviction record, financial sustainability, institutional survival or the comfort of those working for it (including unimpeded entry to the US) –, these considerations are legally irrelevant. They have little to do with issues such as gravity of the alleged crimes and the interests of victims Article 53.1.c directs to take into account.

The second major problem with the PTC’s application of the ‘interest of justice’ criterion concerns the standard of proof. The Chamber’s conclusion that that the ‘interests of justice’ would not warrant the commencement of the investigation comes nowhere close to satisfying the ‘substantial reasons to believe’ standard of Article 53.1.c. By (an admittedly remote) analogy with the ‘substantial grounds to believe’ in the context of the confirmation of charges (‘concrete and tangible proof demonstrating a clear line of reasoning’), the standard of ‘substantial reasons’ arguably implies, at the very least, the existence of some evidence supporting the clear logic that the investigation would be against the interests of justice. The PTC’s reasoning in this respect is anything but clear and substantiated. It rests largely on assumptions, conjecture, and the PTC’s own tendentious reading of facts, for example regarding the limited prospects of cooperation in general and regardless of potential investigative targets (Decision, paras. 90-94; e.g. para. 90: “An investigation can hardly be said to be in the interests of justice if the relevant circumstances are such as to make such investigation not feasible and inevitably doomed to failure”; para. 94: “it seems reasonable to assume…”).  

As noted on Twitter, the implication that follows from the PTC’s botched application of Article 53.1.c—that the investigation would have been against the interests of justice and, therewith the interests of victims—is deeply problematic. It is simply disingenuous and paternalistic for the Court to tell the victims that the investigation would not have been in their interest despite the fact that millions of them submitted the exact opposite during the Article 15.3 consultation process. While this trope bolsters the critique that the ICC instrumentalizes victims, it is also hard to see how victims in the Afghanistan can interpret it as anything other than a betrayal by the Court of their interests. It is no surprise that the decision has been met with utter dismay by the Transitional Justice Coordination Group (TJCG), a coalition of 26 NGOs working to support victims of alleged crimes in Afghanistan. Their statement labels the PTC decision as ‘one of the most shameful decisions the ICC has ever made’. In the circumstances, this is no mere hyperbole and one will struggle not to share this sentiment.

The second part of this post will address the implications of an overt reliance by the PTC on pragmatic and (political) expediency concerns, which it brought in through the backdoor of the ‘interests of justice’, for the credibility of the ICC as a judicial institution.

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Leila Sadat says

April 19, 2019

Excellent post. What is also problematic is the reliance upon the passage of time as a reason for not permitting the case to move forward. In national and international systems, we have almost always seen long periods elapse between the commission of crimes, especially by state actors, and the ability to prosecute them. I’m afraid the characterization of a “judicial meltdown” is entirely accurate: and note, this is the third major decision in less than a year in which the judges have not issued their opinions in timely fashion or have issued decisions that involve ex cathedra musings masquerading as international law. And we recently learned that one judge may have compromised the Ntaganda case. Very upsetting. That said, I would not be so quick to jump from the clear judicial meltdown here to the demise of the Court. We international criminal lawyers tend to fixate on failure: no one has posted about the excellent judgment on admissibility rejecting amnesty for Saif al Qaddafi. A true bright spot in an otherwise bleak year.

Dov Jacobs says

April 19, 2019

A worthwile read Sergey, as always.

I am a little puzzled about the "interests of victims" argument though, which you, and others are making. You refer to the representations received by the Court in the name of possibly millions of victims. However, who can seriously claim that all these victims would end up being able to participate in a particular case that would flow from the investigation, let alone get meaningful reparations? As I said in my own blog post on the matter, the PTC is actually accurate in saying that only a handful of those millions "could ever have the opportunity of playing a meaningful role in as participants in the relevant proceedings".

Therefore, while it might be "paternalistic for the Court to tell the victims that the investigation would not have been in their interest despite the fact that millions of them submitted the exact opposite during the Article 15.3 consultation process", it is disingenuous to suggest that the millions of victims who approached the Court would ever be able to take part in ICC proceedings. In other words, you're selling false hope (which is surprising coming from you), that is bound to lead to dissapointment (as we saw in other situations), which is nothing more and nothing less than the PTC said.

I'm of course not saying that this should be a relevant consideration in the legal determination of whether it is appropriate to open an investigation or not. If it were a relevant legal consideration, no investigation would ever be authorised given the limited number of cases that will always materialise, and therefore the limited number of participating victims compared to the overall victims of the situation.

But for me, that is the level on which the debate should be: is it a relevant legal criteria or not, not on competing, abstract (and frankly all equally valid in their own way) notions of what would be in the "interests of victims".

Dov Jacobs says

April 19, 2019

Hi Leila,

I know my blog is more confidential than others, but someone did post on the Gadafi decision:

Sergey Vasiliev says

April 20, 2019

Hello Leila and Dov, many thanks for reading the posts and for giving me a reason to elaborate on some of these issues.

@Leila: Regarding the lapse of time, I agree that the PTC’s argument is not convincing and the way it's weaved into its reasoning does not make it seem any better. It is true that investigations of crimes committed a long time ago are fraught with practical difficulties due to the destruction, disappearance, and contamination of evidence. But firstly, as a policy matter, this is not a compelling and conclusive ground militating against the investigation; and, secondly, it is also unclear how exactly this consideration fits in the ‘interest of justice’ assessment: would a mere attempt at collecting evidence relating to ‘old crimes’ as part of the actual investigation (as opposed to PE) be against or not in the interests of justice? This is dubious at best. If one accepts the PTC’s rationales, the Khmer Rouge trials should and could have never taken place – but they did and were successful in a large part. Of course, the ECCC OCP benefitted from the treasure trove of documentary evidence collected and preserved by the DC-Cam, which would not be available in Afghanistan. But the OTP might still be able to collect enough solid evidence including witness testimony to build its cases – that’s the very point of the investigation and we would not know unless it is tried. While the evidentiary deficiencies of the kind we’ve seen in other ICC situations are likely unavoidable, this is arguably not something for the PTC to speculate about when deciding whether or not to allow the investigation to go forward.

On your last point, like most others, I am agnostic on whether the present situation would lead inexorably to the ‘demise’ of the Court; things can and hopefully will change (as I hope to have made clear in the 2nd part). But I do think that the way the ICC has positioned itself vis-à-vis the US with this ruling, especially given all the accompanying circumstances, cannot but have major consequences for its credibility among various quarters. My sense is that the decision is bound to be construed (and not without reason) as a manifestation of the structural problem (inherent and irremediable selectivity of ICL), and thus not just a failure that can be ironed out by some other decision. The latter may be a stronger one legally and still lack that unique 'moment of truth' dimension that was associated with the potential (and, as it turned out, impossible) Afghanistan probe.

Sergey Vasiliev says

April 20, 2019

@Dov: I would have been puzzled myself if I had indeed made *that* argument. But nowhere have I claimed that ‘all these victims would end up being able to participate in a particular case that would flow from the investigation, let alone get meaningful reparations’. I guess this must be based on a misreading of my post, insofar as it appears to reduce my argument concerning victim participation under the Part II regime to a form of antipositivist (unrealistic, pernicious) victim advocacy. However, my point related not to the outcome but specifically to the process of decision-making: namely, the failure of the PTC to give (any) consideration to the views expressed in Art 15.3 victim representations, while it is required by the Statute to do so. The Art 15.3 consultation is a procedure intended to serve as the open channel of communication between the PTC and the victims and affected communities whose perspectives should feed into the PTC’s decision on whether or not to give the green light and serve as a sort of a supplement/counterweight to the OTP's request and accompanying materials. Victims’ views collected pursuant to Art 15.3 and Rule 50.3 may pertain to a number of aspects of the OTP request for authorization: the desirability of the investigation, its potential scope in part of the alleged crimes, and coverage in terms of geographic locations, time periods, and (groups of) persons involved – these are the issues encompassed in the interests of victims in the context of the Article 15.3 procedure. The PTC’s failure to take into account, and draw any inference from those views, is simply not in accordance with the Statute; it also makes this participation regime totally redundant and a waste of valuable resources. So what the PTC did was to jettison the representations, substituting them with its own rationales which—as I explain below—should not have played a role in its decision-making at this stage. This move is highly likely to be seen by those victims who communicated with the Court as paternalistic and disingenuous – I stand by this characterization.

I obviously do not disagree, as a matter of fact, that ‘only a handful of those millions “could ever have the opportunity of playing a meaningful role in as participants in the relevant proceedings”’. I understand where the PTC is coming from with the misgivings it expresses in para. 96 of the Decision. However, given the procedural stage, these are extra-statutory considerations. Apologies for getting all too technical and tedious on a Saturday evening, but this parameter is not material for the purpose of an Article 15.3 determination. There are no ‘relevant proceedings’, or a cause pending before a Chamber at this stage yet, other than the question of whether or not to open an investigation and the scope/focus it should have. It is this latter cause that the victims have expressed their views on which should be considered. Their interest such as the participation in other specific situation let alone case proceedings (secured under a different regime - the general regime of Art. 68) is also inexistent, i.e. legally unrecognized, at the time of the Art. 15.3 determination. Nevertheless, the Chamber goes on to consider that interest prematurely, engaging in speculation about whether or not victims would ever have the ‘opportunity to play a meaningful role’ (which it is, simply put, not in a position to know or say anything about at this point). Worse still, the PTC substitutes the — yet (from a legal point of view) inexistent and unarticulated — ‘interests of victims’ to participate in proceedings which it pulls out of thin air (i.e. a different participatory regime inapplicable at this stage), for that which it is statutorily directed to take into account under Arts 15.3 and 53.1.c.

In a nutshell, the notion of ‘interests of victims’ is not a uniform and fixed category across the different parts of the Statute; its content varies depending on a given regime and modality of participation, as well as on the contingent of victims involved (which will obviously not be the same across participatory regimes and procedural stages). But the PTC seems to be unaware of these nuances, which is unfortunate given the implications of the decision.

Now that it has disregarded the legally relevant victim views contained in Art. 15.3 submissions and supplanted them its own predictions (which are more important...), the outcome it feared will materialize much quicker (see para. 96 re: victims’ ‘frustration and possibly hostility vis-a-vis the Court and … negative[] impact [on] its very ability to pursue credibly the objectives it was created to serve’). And this time, the defence that the judges had no other choice but to frustrate victims’ expectations because they ‘merely applied the law’ would not be particularly credible.

Oh, I see this should have been another post…