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Guest Post: The ICC at a crossroads – Examining the decision to authorise the Afghan investigation

The following is a guest post by Mr Manasvin Andra. Mr Andra is a third year student currently enrolled in the undergraduate law program at the National Academy of Legal Studies and Research (NALSAR) in Hyderabad, India.

The International Criminal Court’s (‘ICC’) recent decision allowing Prosecutor Fatou Bensouda to investigate allegations of war crimes in Afghanistan adds a new wrinkle to the Court’s long-running conflict with the United States. In reversing the decision of the Pre-Trial Chamber (‘PTC’), the Appeals Chamber of the ICC affirmed the Court’s position as the foremost adjudicatory body in the realm of international criminal law and drew a predictably sharp response from President Donald Trump and Secretary of State Mike Pompeo.

This post will analyse the decision of the Pre-Trial Chamber and will explore the grounds on which it was overturned by the Appeals Chamber. Further, the consequences of the decision will be explored with the Court and the United States at loggerheads over the legitimacy of the Prosecutor’s decision. It is the submission of the author that this matter involves nothing less than the legitimacy of the ICC, given that the case implicates difficult questions of diplomacy and politics.

The PTC Decision

The primary submission of the Prosecutor was that since 19 June 2002, the State of Afghanistan has witnessed an armed conflict between organised armed groups on the one hand and the Afghan Government and supporting international forces on the other hand. The groups allegedly responsible for the crimes were divided into three categories: the Taliban, the Afghan forces and crucially, US Armed Forces and the Central Intelligence Agency (‘CIA’). On this basis, the Prosecutor initiated propria motu investigations and requested the PTC’s authorisation to proceed under Article 15(3) of the Rome Statute. The Request also involved a plea to investigate certain “other acts” by which the Court was asked to exercise its jurisdiction over crimes committed against persons who were captured and tortured outside Afghanistan. This was made with a view to bring a large-scale detention program allegedly carried out by the CIA within the purview of the investigation, which did not find mention in the list of offences sought to be investigated by the Prosecutor.

After establishing the filtering and restrictive function of the proceedings under Article 15, the Court concluded that the case fell within its jurisdiction as the incidents could be classified as war crimes which had occurred in the territory of a state which was a party to the Rome Statute. However, the PTC held that the protection of law could not be extended to persons captured in the territory of non-party states, which had a direct impact on the offences attributed by the Prosecutor to the CIA. Additionally, it held that actions for which authorisation is not specifically requested fall outside the scope of the Chamber’s judicial scrutiny, which further limited the Prosecutor’s field of inquiry.

Faced with this situation, the Court considered that the case was admissible on the grounds of complementarity and gravity. However, it held that an investigation into the present matter would not serve the interests of justice as it was not feasible to expect the level of cooperation required to investigate matters of this magnitude. This was compounded by changes within the relevant political landscape in Afghanistan and other ‘key’ states – widely interpreted to be a reference to the United States – which ultimately led the PTC to conclude that prospects for a successful investigation and prosecution were drastically diminished.

Decision of the Appeals Chamber

The Prosecutor appealed the decision on two main grounds: first, that the PTC had erred in making a positive determination on the question of whether an investigation into the Afghan situation was in the interests of justice, and second, that the PTC had abused its discretion in assessing the interests of justice.

With respect to the first ground the Prosecutor submitted that the manner in which the PTC had assessed the interests of justice factor – contained in Article 53(1)(c) of the Statute – was wrong in law. Therefore, it fell to the Chamber to determine whether “interests of justice” must be taken into account when determining the existence of a “reasonable basis to proceed with an investigation” under Article 15(4) of the Statute.

At the outset, the Chamber differentiated between Articles 15 and 53 by noting that while the former related to the Prosecutor’s obligation to investigate in cases where a situation is referred by a State Party or the Security Council, the latter relates to investigations taken up by Prosecutor on her own motion. This is a crucial distinction since Article 53(1) contains the limited circumstances on the basis of which the Prosecutor can refuse to proceed with investigations, which includes the Prosecutor’s belief that an investigation would not serve the “interests of justice”. As opposed to this, judicial review is not implicated when the Prosecutor concludes no reasonable basis exists to proceed with the investigation as per Article 15. Articles 15 and 53(1) are separate provisions dealing with the initiation of an investigation by the Prosecutor in two distinct contexts; therefore, the PTC is not required to take into account the factors mentioned in Article 53(1)(a) to (c) when authorising an investigation.

Having determined this point the Chamber felt that the second question did not need to be addressed; however, it made some crucial observations with respect to the scope of the investigation that could be carried out by the Prosecutor. These arose out of the discussion surrounding the Prosecutor’s authority to investigate “other acts” committed outside Afghanistan which the PTC had refused to permit. Primarily, the Appeals Chamber held that limiting the scope to the actions mentioned in the Request would hinder the Prosecutor in performing her duty to establish the truth. Further, the Chamber stated that the Prosecutor was authorised to look into incidents wherein victims were captured and mistreated outside Afghanistan, as the conduct had occurred in the context of the armed conflict in the State. This was a crucial observation, as it amended the PTC’s judgement and brought the CIA detention program within purview of the Prosecutor’s investigation.

The Way Forward

Despite the decision being hailed as a victory by political activists the path forward remains fraught with difficulties. The attitude of the United States towards the ICC is clear with former National Security Advisor John Bolton’s comments (“We will not cooperate with the ICC. We will provide no assistance to the ICC.”) providing confirmation of the nation’s openly hostile disposition towards the international court. As a result, the Court faces immense difficulty in garnering support for the investigation which was reflected in the initial PTC decision. The revocation of Prosecutor Bensouda’s visa adds another layer of complexity to the investigation as access to information and evidence is likely to be denied to the prosecutorial team.

In any case, the Court’s decision to authorise the investigation is significant as it has historically sought cooperation rather than confrontation with the United States. The Court has usually gone out of its way to avoid probing US conduct, as evidenced by the Prosecutor’s refusal to investigate conducts in the Iraq war. There is also an aversion to investigating the conduct of European nations in armed conflict as seen by the refusal of the International Criminal Tribunal for the Former Yugoslavia to investigate potential NATO crimes in the Balkans. In both cases the decisions taken were political as sufficient evidence of complicity and crimes existed for the authorisation of an investigation.

Against this background, the decision of the ICC to investigate US conduct marks a new chapter in the fraught relationship between the Court and country. Difficulties in securing evidence and failure in holding the US accountable for its actions will damage the legitimacy of the Court going forward. If, as appears likely, the US refuses to assist the investigation, the prosecutorial team’s progress may be irreparably stymied. In the event that sufficient evidence in acquired and a guilty verdict is delivered, the Court faces further complexities in sentencing the guilty parties. The present decision also poses long-term concerns for the ICC, as it jeopardises the thawing of relations that took place under the Obama administration. It is unlikely that the US will look favourably upon the ICC’s existence post this decision, which represents a larger geopolitical conundrum for the politically sensitive Court to navigate.

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