ICC Pre-Trial Chamber rejects OTP request to open an investigation in Afghanistan: some preliminary thoughts on an ultra vires decision

Normally, I wouldn’t post on a Friday evening, but, in the interests of justice, I feel compelled to do so for once.

Indeed, earlier today, Pre-Trial Chamber II rejected the Prosecutor’s request to open an investigation in Afghanistan. This was a much awaited decision which will undoubtedly create a lot of controversy.

The timing of the decision itself is interesting. Compared to other such decisions, it took an incredible amount of time to be issues: nearly 17 months. Reading through the decision, it is difficult to understand why this took so long. Indeed, most of the decision in relation to jurisdiction and admissibility is quite uncontroversial and there does not seem to be any particular practical difficult in dealing with the various issues rapidly. This timing, mere weeks after the ramping up of US hostility towards any investigation which might relate to US nationals, will inevitably raise suspicions as to whether the Judges gave in to outside pressure. Whether this is true or not, the impression that this sends out is bound to be negative in this respect.

Moving on to the decision itself, there are a few noteworthy points I’d like to briefly raise.

1. the scope of the “situation”.

The Pre-Trial Chamber found that:

More specifically, the precise width and breadth of the Prosecutor’s power to investigate are to be determined on the basis of the scope of the Chamber’s authorisation: 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.

[…]

The filtering and restrictive function of the proceedings under article 15 further implies 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. To conclude otherwise would be tantamount to equating the authorisation to a blank cheque, which would run against the very rationale of article 15 and thus defeat its underlying purpose. The authorisation sets the framework of the probe; investigation on incidents not closely related to those authorised would only be possible on the basis of a new request for authorisation under article 15, with a view to allowing the Chamber to conduct anew its judicial scrutiny on all relevant requirements, including jurisdiction, complementarity, gravity and interests of justice.

This approach by the Pre-Trial Chamber seems extraordinarily restrictive of the powers of the Prosecutor during a formal investigation: if she hasn’t mentioned particular incidents in her request to open an investigation, then she cannot deal with them, even if new evidence comes to light once the formal investigation has started. This is problematic for many reasons.

First, the whole point of a formal investigation is that the OTP will finally have concrete investigative powers (which include obligations for State parties to investigate), which will allow it to seriously collect solid evidence. It is not until the investigation is conducted that the Prosecutor can know what crimes can be proven or not.

Second, it transforms “situations” into a series of investigations in incidents and collapses it into “mini-cases”, which I don’t think is the nature of a situation. I do believe that the Prosecutor should have discretion to select the cases it feels it has the strongest evidence for, within the situation, in order to move forward to the next phase.

Third, this decision creates an unjustified practical distinction between an investigation in a situation following a proprio motu request from the OTP (which is subject to a PTC decision) and an investigation following a referral from a State or the UNSC (which is not subject to a PTC decision). The trigger mechanism should only affect how an investigation is opened, not how it is subsequently conducted, which should be the same for all situations. If the PTC were to be followed, this would not be the case.

2. The relevance of Article 98(2) agreements.

The PTC found that:

Furthermore, as to the Agreement of 30 September 2014 between the United States and Afghanistan pursuant to article 98, requiring the consent of a sending State to surrender a national of that State to the Court, the Chamber concurs with the Prosecution that agreements entered into pursuant to article 98(2) of the Statute do not deprive the Court of its jurisdiction over persons covered by such agreements. Quite to the contrary, article 98(2) operates precisely in cases where the Court’s jurisdiction is already established under articles 11 and 12 and provides for an exception to the obligation of States Parties to arrest and surrender individuals.

I would tend to agree with this point. For me, Article 98(2) agreements are not relevant for the determination of the existence of jurisdiction of the Court, and only become relevant later on in the proceedings, as a possible obstacle to the arrest and surrender of individuals.

I do know that there is a counter-argument out there, to the effect that these agreements are relevant to jurisdiction in the following way: even if Afghanistan is a State party, it cannot be deemed to have transferred to the ICC the capacity to exercise criminal jurisdiction over persons when it could not itself, due to that Article 98(2) agreement, exercise such criminal jurisdiction. I think this argument, while interesting, takes too rigid a view of the nature of the delegation of powers from State parties to the ICC, which is a general delegation, not a specific one in my view.

3. The territorial scope of a situation.

One interesting aspect of the request to open the investigation was that the Prosecutor brought in the question of torture of Afghan nationals at CIA “black sites” in various European countries, all State parties to the Rome Statute. The PTC does not deal with this in a very adequate way (par. 51-55), by claiming that 1) the person must be captured on the territory of Afghanistan and 2) that some of the torture must take place on the territory of Afghanistan. Not only does this seem to be a very restrictive view of the application of IHL rules, but it seems to exclude the possibility of a “multi-territorial” situation. Indeed, even putting the territorial scope of the non-international armed conflict aside, one could make an argument for crimes against humanity having been committed, with a policy implemented over several territories. I don’t see what legal obstacle there would be in doing that.

4. The “interest of justice” argument.

And now we come to the obvious main point of the decision: the fact that the PTC, despite finding that the Court has jurisdiction and that the situation would be admissible, decides to reject the OTP request based on the “interests of justice”. Several remarks on this need to be made.

First of all, and perhaps most importantly, the exercise that the Pre-Trial Chamber did is most likely ultra vires. Indeed, Article 53(1)(c) is very clear that it is the Prosecutor who can decide to not open an investigation in the “interests of justice”. It is only if the Prosecutor makes such a decision, that a Pre-Trial Chamber can review it (Article 53(3)(b)). The only job of the PTC when the Prosecutor requests the opening of an investigation is to determine jurisdiction and admissibility. And the “interests of justice” fall under neither of these categories.

This is extraordinary to say the least, and is one more step in the slow erosion of Prosecutorial discretion that the judges are slowly implementing in the past few years, as in the Comoros and the Bangladesh decisions.

Second of all, the criteria used by the PTC to determine why the opening of an investigation would not be in the “interests of justice” are equally extraordinary. I cannot quote the full 3 pages that the Judges devote to this, but here is just a taste:

subsequent changes within the relevant political landscape both in Afghanistan and in key States (both parties and non-parties to the Statute), coupled with the complexity and volatility of the political climate still surrounding the Afghan scenario, make it extremely difficult to gauge the prospects of securing meaningful cooperation from relevant authorities for the future, whether in respect of investigations or of surrender of suspects; suffice it to say that nothing in the present conjuncture gives any reason to believe such cooperation can be taken for granted.

[…]

Furthermore, the Chamber notes that, in light of the nature of the crimes and the context where they are alleged to have occurred, pursuing an investigation would inevitably require a significant amount of resources. In the foreseeable absence of additional resources for the coming years in the Court’s budget, authorising the investigation would therefore result in the Prosecution having to reallocate its financial and human resources; 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.

Three conclusions can be drawn from the Court’s reasoning :

a) States should be as vocal as possible about their opposition to the Court and their absence of will to ever cooperate with it in order to make sure no investigation is opened in a situation. I usually leave the realist political analysis on the broader impact of the ICC to more competent people, but this is an absolutely terrible message to send, in the context of the opening of an investigation!

b) The PTC have transformed themselves into the financial comptrollers of the budget of the OTP and how it is spent, which is definitely not their role. The Budget of the Court, and more particularly the budget of the OTP, while of course a major issue generally, should not have any concrete impact on actual judicial proceedings. Indeed, it leads to the balancing of legal considerations, which should be the only relevant considerations inside the courtroom, with extra-legal management considerations. This decision is a very visible example of such a balancing exercise, but it has not been absent of the case law in the past on other issues (for example in relation to ordering video-link testimony in lieu of live testimony or in relation to the translation of documents in the proceedings). The Judges seem to confuse their role as managers of the legal proceedings with a role of managers of the funds of the Court.

c) This reasoning transforms the Judges at the PE phase into fortune-tellers about what cases have a more likely chance of going to trial in the future. But of course, they give us absolutely no indication of what criteria they have in mind for that! Of course, the implication of the decision is that only situations where the suspects are easy to catch and the evidence is dumped, gift-wrapped, on the Prosecutor’s lap should be investigated. But this cannot be acceptable legal criteria because, as noted before, it would reward uncooperative States and this would exclude all the difficult cases where the ICC, arguably, is expected to be present.

One final point on this. The Chamber concludes with the following thoughts on the victims:

It is worth recalling that only victims of specific cases brought before the Court could ever have the opportunity of playing a meaningful role in as participants in the relevant proceedings; in the absence of any such cases, this meaningful role will never materialise in spite of the investigation having been authorised; victims’ expectations will not go beyond little more than aspirations. This, far from honouring the victims’ wishes and aspiration that justice be done 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.

I actually agree with that statement, in terms of creating unrealistic expectations for victims of a situation, as I’ve said countless times on this blog. However, what the Judges fail to see, is that this argument, if accepted, could arguably lead to never opening an investigation in any situation, ever. Indeed, the ICC is structurally incapable of satisfying the expectations among affected communities, in relation to the recognition of their individual suffering and even less so in terms of actual reparations. This is an extraordinary moment of lucidity by the Judges of the limitations of the ICC, which could logically have led them to drop the mic and leave the stage.

All in all, this is probably one of the most dramatic case of “sawing the branch we’re sitting on” anyone has ever seen in an international tribunal decision…

I would expect the OTP to try and appeal this decision. However (and thank you to my friend and colleague Joe Powderly for pointing it out), because the basis of the decision is arguably neither an issue of jurisdiction nor an issue of admissibility, there is no automatic right to appeal and the Prosecutor will need to seek leave to do so under Article 82(1)(d). I wonder what the odds of the Judges having issued the decision granting leave to appeal it….

[UPDATE: Kevin Jon Heller has a post up already on this question of appeal here. We share the same skepticism on this issue, but I think Kevin is wrong to say that Article 82(1)(d) does not apply because it applies “to specific cases and proceedings, not to situations”. 82(1)(d) applies to all decisions that do not fall under the other three categories, whatever the phase of the proceedings. This has been a consistent practice of the Court to date. For example, quite relevantly, the current appeal procedure in the Comoros situation was triggered following a 82(1)(d) request for leave to appeal (see here and here). This is clearly a comparable situation (no pun intended…) and I don’t see why 82(1)(d) would not apply.].