On 12 April 2019, Pre-Trial Chamber II of the International Criminal Court (the Court), composed of one Congolese President, and two new-elected judges, rejected unanimously the request of the Prosecutor to initiate a full investigation for alleged crimes against humanity and war crimes within the situation of Afghanistan. A decision that was extremely welcomed by Donald Trump, as he could be confident that Americans would not be prosecuted by The Hague-based Court, as long as the foregoing decision is valid. Dr. Mohammad H. Zakerhossein argues that the 32-page decision of the Chamber is short in size, but it is a big blow to credibility of the Court’s judiciary.
The complex situation of Afghanistan was tabled before the Prosecution in 2007. After 10 years of conducting a preliminary examination, in November 2017, the Prosecutor concluded that there would be a reasonable basis to proceed with a full investigation into crimes allegedly committed by various groups in Afghanistan since 2003, including Taliban, Afghan state forces and CIA members. Therefore, she filed a request for authorization of a full investigation. Judges spent nearly 17 months to arrive at their unexpected and controversial decision on the request, which has sparked off a heated and lively debate.
The decision marks the first rejection of the Prosecutor’s request for an authorization to initiate an investigation. Previously, the Prosecutor was granted authorizations to conduct investigation into Kenya (2010), Cote d’Ivoire (2011), Georgia (2016) and Burundi (2017). In addition, it was the first time that Judges at the Court discussed the notion of the “interests of justice” under the Rome Statute. The Judges of the Chamber were satisfied that there was a reasonable basis to believe that crimes under the jurisdiction of the Court have been committed in Afghanistan, and, taking into account the requirements of gravity and complementarity, the situation of Afghanistan would be admissible. Nevertheless, they refused to authorize investigation arguing that the Court’s investigation would not serve the interests of justice. By then, this part of Article 53 of the Rome Statute was a dead provision, because it had not drawn any judicial attention.
This recent change of attitude to the interests of justice notion recalls the transmutation that the notion of ‘gravity’ underwent; a concept that was quite ignored during the initiatial years of the Court’s operation, but suddenly occupied the centre of attention. The recent decision is disappointing, but simultaneously, it betokens shedding light upon the concept of interests of justice.
Different aspects of the recent decision have generated a wide range of discussion from the authority of Judges to review the interests of justice requirement, to appealability of the Chamber’s decision by the Prosecutor. Moreover, the scope of territorial jurisdiction of the Court in case of war crimes is among those issues that have been discussed. More topics are coming up.
Giving considerations to all current debates, it is evident that the Court’s decision has not been satisfactory. Reading the decision poses a lot of questions that undermine the credibility of this ruling. This piece intends to provide some thoughts on a number of conceptual issues arising from the decision at hand to contribute to the current debate.
Conceptualization of Situation
Recently, I wrote a piece arguing that “situation” under the Rome Statute is a concept without consensus. The recent decision offers other evidence for this claim. A situation is the point of departure for the Court’s operation, and without a precise understanding of this concept, the Court loses consistency in its jurisprudence. It is well-established that a situation is not a case. But, it is still unclear what a situation per se is.
Three Judges at the Pre-Trial Chamber II offer a new meaning of situation. By adopting a very restrictive approach, they define a situation as an incident-oriented notion. According to them, “the Prosecutor can only investigate the incidents that are specifically mentioned in the Request and are authorised by the Chamber, as well as those comprised within the authorisation’s geographical, temporal, and contextual scope, or closely linked to it”. Judges explicitly reject the generality of the situation concept that has been understood as an inherent characteristic of this notion by claiming 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”.
A situation compromises two constituent elements, namely contextual element and jurisdictional parameters. The contextual element of a situation is a crisis. A ‘situation of crisis’ is the factual dimension of the situation notion. This element is an objective and concrete crisis in which one or more crimes within the Court’s jurisdiction occur. In the situation of Afghanistan, a non-international armed conflict between Government and the supporting forces and anti-government forces constituted the contextual element situation of Afghanistan. This context is not limited to incidents identified by the Prosecutor during preliminary examination, as they are preliminary and potential. In preliminary examination, the Prosecutor is not required to conduct a comprehensive investigation to identify all incidents and crimes within a situation. Preliminary examination is preliminary in nature and could change later, when an investigation begins. Making the findings of a preliminary examination static is in contrast with the nature of this stage. Therefore, contrary to Judges’ understanding, the Prosecutor ‘should be permitted to expand or modify its investigation with respect to the acts identified in this Request or other alleged acts, incidents, groups or persons”.
I agree with Judges that an investigation authorization should not be considered as a “blank cheque” permitting the Prosecutor to prosecute all crimes committed within a territory. A situation undertakes a jurisdictional function. It determines the boundaries within which the Prosecute might select a case for prosecution. Therefore, all cases within a situation should be linked with the original situation. Without a nexus, the Prosecutor is not permitted to prosecute a case under the original situation, irrespective of the mechanism that has triggered the Court’s jurisdiction. For this reason, when the Prosecutor expressed her decision to investigate the ‘migrants crisis’ in Libya, I criticized the Prosecutor’s understanding of the situation notion. The Libya situation as referred by the UN Security Council has a concrete context; oppression of Gaddafi’s opponents. Extending this scope to a new crisis is outside of the boundaries of the situation in Libya. This jurisdictional function of situation is applicable to those situations undergo the Prosecutor’s propio motu preliminary examination. Therefore, in the authorization process, Pre-Trial Judges have an authority to review and reconsider the situational scope of an investigation in order to make it clear.
Nevertheless, what is necessary is a nexus between those cases selected for prosecution and the context of a situation, not incidents within the situation. The Prosecutor is not obliged to investigate and prosecute all crimes and incidents within the Court’s jurisdiction. Cases selected by the Prosecutor are exemplary. However, the Prosecutor has authority to make a selection among all cases within a situation, because it is the general context of a situation that determines the scope of prosecutorial discretion for selectivity.
Moreover, a situation could be an ongoing crisis. It does not reasonable to limit prosecute only to those specific incidents that have been identified at the time of filing a request for authorization. Requiring such a specificity contradicts with the generality of a situation.
The incident-oriented approach recalls the similar approach adopted by the Appeals Chamber in the complementarity assessment. In the Libya situation, the Appeals Chamber insisted that incidents are a key factor in assessing the complementarity requirements, and to make a case inadmissible before the Court, the domestic prosecution should mirror the same incidents selected by the Prosecution. Now, at the situational phase, the Judges oblige the Prosecutor to prosecute those incidents that have already been identified in the preliminary examination. Such a narrow interpretation does not have any root in the Rome Statute. In the Libya situation, it was firmly confirmed by the Pre-Trial Chamber that the incidents referred to in the Prosecutor’s application for an arrest warrant are exemplary and non-exhaustive. The same is true about the Prosecutor’s application for an authorization. A situation could be something more than the identified incidents in the Prosecutor’s application.
Conceptualization of Interests of Justice
The notion of interests of justice (IoJ) is not defined by the core legal texts of the Court. However, there are several indictors in Article 53 that describe the factors that should be considered in understanding this concept. PTC II gives a meaning of interests of justice that refers to the feasibility of investigation and prosecution. It was the Prosecution, by issuing the Policy Paper of Case Selection and Prioritization, that for the first time referred to the ‘availability’ of a case as a practical factor in prioritization of cases. Now, PTC Judges seems to follow the Prosecutor’s attitude but by categorizing this factors under the notion of interests of justice. However, this categorization does not seem to be correct.
First, Article 53 exhaustively refers to two factors that should be given considerations in assessing the IoJ, namely gravity of crime and interests of victims. Clearly, feasibility and the prospect of an effective investigation are not included in these factors. Reading these two factors together suggest that the most applicable context in which this requirement may play a role is the dilemma of peace or justice. If serious crimes, taking into account their adverse consequences on victims, are being constantly committed, and security, well-being and lives of victims require that peace and amnesty will be prioritized to avoid continuation of conflict and atrocities, then prosecution could not be considered as serving interests of justice. Practical issues that make a prosecution available are conceptually outside of the scope of IoJ, because this concept is a victim-oriented factor.
Second, availability plays a key factor in selectivity of the Court. But, availability, that has not been referred to in the Rome Statute, is a matter of policy not law. Indeed, it is a factor in prioritization of cases, but does not have any role in selecting them. The Policy Paper states, there is a Case Selection Document that lists all cases selected on the basis of legal considerations. Availability, however, plays a key role in make a priority among the choices put in the list. In the authorization process, what matters is selection not prioritization. It is the responsibility of the Prosecutor to make a prioritization, given availability of situations and cases. Nonetheless, there is no statutory basis for Judges to review and judge this aspect of selectivity at the Court. As soon as, they are satisfied that a situation falls within the Court’s jurisdiction and is admissible they shall issue an authorization.
It deserves to be mentioned here that what Judges have done in the situation of Afghanistan is an intervention in prosecutorial affairs. As Article 42 of the Statute states: “The Office shall be headed by the Prosecutor. The Prosecutor shall have full authority over the management and administration of the Office, including the staff, facilities and other resources thereof”. The Prosecutor has a budget that should be used for, inter alia, investigation and prosecution. It is her exclusive responsibility and authority to draw up where and when this budget could be used. Contrary to this division of labor, in the authorization decision, Judges state that “pursuing an investigation would inevitably require a significant amount of resources”, and “in light of the limited amount of such resources, this will go to the detriment of other scenarios (be it preliminary examinations, investigations or cases) which appear to have more realistic prospects to lead to trials and thus effectively foster the interests of justice, possibly compromising their chances for success”.
The Chamber’s understanding of victims’ needs is imperfect. The Chamber states that when there would not be any case because of non-feasibility of prosecution, the meaningful participation of victims in the proceedings will never materialize in spite of the investigation having been authorised. In this scenario, according to Judges, “victims’ expectations will not go beyond little more than aspirations”, and “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”. Nonetheless, this belief is not perfect.
It is true that a prosecution without an outcome might disappoint victims, but inactivity of the Court is by far disappointing and devastating. The Court’s credibility, legitimacy and effectiveness should be assessed based on expressivims. The Court functions selectively. Investigation and prosecution at the Court are exemplary. The value of this exemplary operation should be understood by taking into account their expressive function. The Court’s investigation, even without prosecution, at least, gives voice to victims, draw attention to atrocities and record the truth.
Image: By Hypergio – Own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=47958553