On March 5 2020, the Appeals Chamber of the International Criminal Court (ICC) authorised the Prosecutor to commence an investigation in relation to the alleged crimes committed in the context of the armed conflict in Afghanistan since 1 May 2003, reversing the Pre-Trial Chamber’s highly controversial decision to refuse the opening of such investigation based on the lack of interests of justice.
By judging that the Pre-Trial Chamber (PTC) erred in law, the Appeals Chamber salvaged the ICC’s credibility, which had been questioned due to the non-legal arguments used by the PTC to justify the refusal to open an investigation.
In her appeal, the Prosecutor raised two grounds, requiring the Appeals Chamber to determine (1) whether the PTC erred in law in seeking to make a positive determination of the interests of justice, and (2) whether the PTC abused its discretion in assessing the interests of justice.
The scope of the Pre-Trial Chamber’s judicial review
According to the Prosecutor, Articles 15(4) and 53(1)(c) of the Rome Statute require or permit “the PTC to determine whether it agrees with the Prosecutor that there are no substantial reasons to believe that an investigation would not serve the interests of justice” (§21). Hence, as the Prosecutor did not find any reasons to believe that an investigation would not be in the interests of justice, the PTC should have agreed to her assessment.
The Appeals Chamber started its analysis by considering the function of Articles 15 and 53 and their relationship. Article 15 recognises the discretionary power of the Prosecutor to initiate investigations proprio motu. The judges noted that this article does not refer to the interests of justice or to Article 53, and that Article 15(4) only requires the PTC to determine whether “there is a reasonable basis to proceed with an investigation and that the case appears to fall within the jurisdiction of the Court”. Hence, the judges found that a plain reading of the article leads to the conclusion that the PTC does not have to take into account other considerations while exercising its judicial control (§34).
Furthermore, the Appeals Chamber underlined that while rule 48 of the Rules requires the Prosecutor to consider all the factors under Article 53(1), encompassing the interests of justice, in deciding whether to request an authorisation of an investigation, “there is no equivalent rule that would import these considerations for the purposes of a PTC’s determination under Article 15(4)” (§35). Thus, the Appeals Chamber concluded that the interests of justice factor does not fall under the control of the PTC.
The judges added that, if the PTC had to assess all factors under Article 53(1)(a) to (c), this would include an assessment of the admissibility of the case under Article 17, which would be limited due to the fact that at the stage of the proceedings, the Prosecutor is not required to inform States of her intention to seek an authorisation for an investigation, and so the information regarding the admissibility would most likely be missing.
Hence, the Appeals Chamber asserted that, by deciding that “an investigation into the situation in Afghanistan at this stage would not serve the interests of justice”, the PTC erred in law. The PTC should only have addressed whether there was a reasonable factual basis for the Prosecutor to proceed with an investigation, i.e. whether crimes had been committed, and whether the Court had jurisdiction (§46).
Based on this conclusion, the Appeals Chamber did not address the Prosecutor’s second ground of appeal, i.e. whether the PTC abused its discretion in assessing the interests of justice. However, the judges provided some observations on the assessment of the interests of justice, to the extent that it has been a subject of intense debates among academic and civil society.
First, the judges underlined the negative formulation of Article 53(1), explaining that the Prosecutor does not need to determine that an investigation would be in the interests of justice. Second, the Appeals Chamber found that the PTC’s reasoning regarding the interests of justice was “cursory, speculative and did not refer to information capable of supporting it” (§49). Finally, the judges considered that the PTC did not take into account the gravity of the crimes and the interests of victims, leading to the conclusion that the PTC failed to correctly assess the interests of justice.
The amendment of the PTC’s decision
Considering that the PTC found that “there is a reasonable basis to believe that the incidents underlying the Request occurred” and that “all relevant requirements are met as regards jurisdiction” (§53), the Appeals Chamber decided not to reverse PTC’s decision, but rather to amend it.
The judges assessed the scope of the authorised investigation, considering that while the PTC did not authorise the investigation, it nevertheless made statements regarding the scope of a potential investigation which were based on legal error and an incorrect understanding of its role under Article 15(4).
In fact, the PTC stated that, if it were to authorise an investigation, the Prosecutor could only investigate alleged crimes mentioned in the Request “as well as those comprised within the authorisation’s geographical, temporal, and contextual scope, or closely linked to it”, and not “any other alleged crimes that fall within the scope of the authorised situation” as requested by the Prosecutor.
Considering the early stage of the proceedings, the Appeals Chamber found that the Prosecutor would not be able to identify exhaustively or with great specificity each crime or perpetrator that could be subject to investigation. In addition, the judges recalled that under Article 54(1)(b), the Prosecutor is required “to take appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court”.
The Appeals Chamber asserted that in order to obtain a complete view of the relevant facts and enable the Prosecutor to conduct her truth-seeking function, she must carry out an investigation into the situation as a whole. Hence, the judges concluded that the authorisation should not be restricted to the incidents mentioned in the Request and incidents that are closely linked thereto (§60-61).
This outcome led the Appeals Chamber to determine whether certain acts committed outside Afghanistan would amount to war crimes if the victims of these acts were captured outside Afghanistan. Indeed, the Prosecutor provided information on alleged war crimes amounting to serious violations of Common Article 3 (of the Geneva Conventions) committed by members of the CIA both in facilities in Afghanistan, and in other States Parties. Some individuals were allegedly captured outside Afghanistan, however, the Prosecutor only considered those that, according to her, had a nexus to the armed conflict in Afghanistan.
While the PTC found that the alleged incidents which the Prosecutor attributed to the CIA fell outside the Court’s jurisdiction “since these are said to have occurred against persons captured elsewhere than Afghanistan” (§71), the Appeals Chamber, after analysing Common Article 3, considered that “it is incorrect to assume that, merely because the alleged capture of the victim did not take place in Afghanistan and the alleged criminal act also occurred outside Afghanistan, the conduct cannot possibly have taken place in the context of, and have been associated with, the armed conflict in that State” (§76).
Hence, the Appeals Chamber concluded that the PTC’s finding regarding the nexus requirement was incorrect, and that there was no reason to limit the Prosecutor’s investigation.
Strong message
By authorising the opening of an investigation, not only the Appeals Chamber gave hope to victims that justice will be brought, but also, recalled the independence of the ICC. Despite (American) pressures, the judges reaffirmed that truth-seeking and criminal accountability cannot be sacrificed at the altar of political and financial considerations.