I did not anticipate waking up Friday morning to news that an International Criminal Court (ICC) Pre-Trial Chamber had rejected the Prosecutor’s request to authorize an investigation of the situation in Afghanistan. But reality comes at you fast. The Court’s Pre-Trial Chamber II decided that an investigation into the situation in Afghanistan “at this stage would not serve the interests of justice.” Notably, the decision was unanimous. Words like “stunned” and “astounded” are filling the internet. Court watchers will discuss and dissect the decision for months and years, but a couple of quick thoughts come to mind.

Legal Background

By way of background, under the Rome Statute, in the absence of a “referral” by a Rome Statute party or by the United Nations Security Council, the ICC Prosecutor must secure authorization from the Court’s judges in order to commence a formal investigation. In considering a request for authorization, the ICC judges must then decide whether there is a reasonable basis to proceed with an investigation, and in this connection must consider whether—

(1) there is a reasonable basis to believe that crimes within the jurisdiction of the Court – war crimes, crimes against humanity or genocide – have been committed;
(2) the case would be “admissible”; and
(3) an investigation would serve the “interests of justice.”

The third element sits at the core of Friday’s decision. Pre-Trial Chamber II has said that “an investigation would only be in the interests of justice if prospectively it appears suitable to result in the effective investigation and subsequent prosecution of cases within a reasonable time frame” (paragraph 89). The Pre-Trial Chamber then pointed to various factors – including the unlikelihood of cooperation by the relevant parties, changes in the “political landscape both in Afghanistan and in key states (both parties and non-parties to the Statute,” and the “complexity and volatility of the political climate still surrounding the Afghan scenario” (paragraph 94) — in concluding that this condition was not met for Afghanistan. It further stated that the fact that “pursuing an investigation would inevitably require a significant amount of resources” would inure to the detriment of preliminary examinations and investigations in other cases that “appear to have more realistic prospects to lead to trials and thus effectively foster the interests of justice, possibly compromising their chances for success” (paragraph 95).

Assessing the Court’s Judgment

What should we make of what the Chamber has said about the “interests of justice” test? Much has been said in the past about what might justify the Court declining to move forward with a matter in the “interests of justice.” For example, there have been questions whether the Prosecutor, in assessing whether pursuing a case is in the interests of justice, should take into account any risk that an investigation might interfere with peace talks by eliminating the prospect of amnesties for leaders of warring factions and thereby dis-incentivizing them from participating in resolution to a conflict. Others have argued that such investigations could undermine the ability of parties to pursue transitional justice processes that that seek to balance the goals of accountability with local methods of reconciliation, or that otherwise give less weight to outcomes that involve criminal trials. Indeed, in the very context of Afghanistan, the statement by the European Union Council last week – calling for an end to the conflict in Afghanistan through an agreement to “be negotiated in an inclusive way” and that “allows for possibilities to ensure accountability, including through transitional justice” – hardly seemed like an invitation for the ICC to jump in and make preemptive decisions about these issues while we are seeing whether negotiations between the parties will find a footing.

For its part, the Prosecutor’s Office has for many years treated the “interests of justice” criteria as playing a quite limited role and basically equating it with the interests of victims. The Pre-Trial Chamber’s decision does not necessarily challenge the focus on victims, but it conceptualizes the victims whose interests might be jeopardized in a broad way. Thus, it takes into account not just the interests of victims of the conflict in question, but of victims in other countries whose situations are being addressed by the Court. The Pre-Trial Chamber considers the tradeoff with other ICC efforts that might be caused by utilizing scarce resources on what the judges see as  an unlikely-to-be-successful investigation in Afghanistan.

In thinking about the judges’ decision, it may be useful to separate the Pre-Trial Chamber’s mode of analysis, on the one hand, from the application of the analysis to the particular facts that the Pre-Trial Chamber faced, on the other hand.

The Pre-Trial Chamber’s basic mode of analysis contains one element that is, in my view, inevitable. For too long, the “bar” that has been set for whether an investigation should proceed has been unsustainably low. In addition to the interests of justice, the elements that comprise admissibility – both complementarity and gravity – need to be applied in a manner so as to better enable the Court to identify the cases where its efforts are truly needed – e.g., the most egregious examples of states refusing to pursue accountability, or the situations where the crimes that have been perpetrated are the most grave. For better or worse, the ICC – like all international institutions – is an institution of limited resources, and it inevitably will need to make decisions about where to allocate its prosecutorial and judicial assets to best promote its objectives. We should not confuse that which we believe should be done to make the world a better place with what the ICC should be expected to do. We do the ICC no favors by assigning it responsibility for efforts in which it will inevitably fail.

But even if the idea of establishing priorities is inevitable, there are many problems the Court will now face. A key source of that problem lies in the failure of the Court to have established general criteria that would help focus its efforts. Such criteria must be developed outside the context of any particular case, and in particular outside the context of this case, in which the political environment is so obviously charged. The failure to develop such criteria will leave the Court vulnerable to – and some might argue defenseless from — charges that it has simply capitulated to pressures from the U.S. Government not to proceed in this case.

Aside from questions about whether the Court has reacted to political pressure, and even if one accepts the need for better prioritization, there will also be searching questions about the underlying logic of the Pre-Trial Chamber’s “interests of justice” analysis. One can easily imagine, for instance, criticism of the Chamber’s basing its conclusion on the idea that prosecutions are unlikely to be concluded successfully. Does such an approach not embody, some may ask, a kind of succumbing to the odds that are not in fact in the best interests of justice (think for example of what the odds of successfully prosecuting Chadian dictator Hissène Habré may have been twenty years before his May 2016 conviction before the Extraordinary African Chambers in Dakar)? What message would such an approach have sent to victims of a decision not to pursue those responsible for mass atrocities in Darfur on similar grounds? Does this kind of approach not formalize an incentive structure that rewards non-cooperation? How can the Court both prioritize proceeding against the most severe examples of states refusing to pursue accountability and, at the same time, bow to states that put up stiff resistance to cooperating with the Court?

That is not to say I disagree with the idea that the Court needs to establish criteria for prioritizing investigative, prosecutorial, and judicial resources, or even that “likelihood of success” should be part of the equation. Rather the fundamental problem is the lack of a well-articulated, pre-established predicate for prioritization, and the need now for further and deeper thinking about the overall issue of prioritization. That further and deeper thinking needs to include elements that are not easily addressed and choices that are not comfortable to make for Court actors who we might like to view as doing nothing beyond applying the law. Hopefully, a benefit of Friday’s decision – whether intended or not – will be to provide a segue for a more comprehensive discussion of what those criteria should be and how they should be applied.

Usefully, the Pre-Trial Chamber’s decision does seem to open a door to getting away from reasoning under which a Court’s authorization of an investigation in a country is seen as constituting an investigation of the “situation as a whole.” The Chamber, even before reaching the interests of justice issue, suggests that it would not authorize an investigation of acts by “members of international armed forces,” by which it means armed forces of countries other than the United States, in the absence of a separate showing that there is a reasonable basis to proceed with such an investigation. In other words, the judges challenged the assumption that the Prosecutor should be able to investigate all parties in Afghanistan simply because the threshold had been met for an investigation of the Taliban or of the Afghan security forces. The Pre-Trial Chamber’s approach appears consistent with the idea that there is a need for judicial scrutiny of proprio motu cases before authorities available to the Prosecutor under the Rome Statute can be “unleashed” against the forces of a particular state. Depending on how this part of the Pre-Trial Chamber’s analysis is eventually interpreted and applied, it embodies a potentially important principle. It would mean, for example, that meeting the threshold for the Afghan parties would not automatically result in authorization to investigate US persons operating on Afghan territory.

In connection with this last point, of course, the Pre-Trial Chamber concluded that – had it not been for the interests of justice factor – the threshold for authorizing an investigation with respect to United States persons would have been met. This conclusion is far more open to challenge than the decision lets on, and I think it is in fact not at all obvious that an ICC investigation of US persons would be appropriate, even before one gets to the interests of justice issue (and separate from any questions that US administrations have raised about whether the Court should assert jurisdiction over nationals of states that are not parties to the Rome Statute). There are genuine questions with respect to both “complementarity” (e.g., whether domestic processes were so deficient as to warrant the ICC’s intervention) and “gravity” (e.g., whether the scale of the alleged crimes is sufficiently high in comparison to mass atrocities in other situations). One can agree or disagree with the conclusion that tests for complementarity and gravity should be considered to have been met, but the questions at a minimum warrant a focused discussion. In any event, moving forward, the tests for both complementarity and gravity need to be applied in a manner that allows them to serve a stronger filtering role in helping the Court to prioritize where best to allocate its resources.

There has been increasing concern among Rome Statute parties that the ICC has been becoming “all things to all people” and that it needs to find a better way to prioritize use of its resources. These concerns find concrete expression in the battle each year over the size of the Court’s budget, and the reluctance of states parties to provide further funding manifests a view that the Court needs to develop better ways to prioritize its work. It is unfortunately not at all clear that Friday’s decision is a step in that direction or that it will in fact help shape an environment in which a more comprehensive discussion about prioritization can take place. But it is a conversation that needs to happen. And it is also, in my view, a conversation in which the United States needs to find a way to constructively participate, as there are clearly issues in which there are abiding American interests. The United States continues to profess support for the fundamental principle that those responsible for mass atrocities should be held to account. It would do neither itself nor the rest of the international community a service by absenting itself when such important issues are discussed.

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