The Appeals Chamber of the International Criminal Court (ICC) authorized a formal investigation into alleged crimes committed during the war in Afghanistan on Thursday, overturning a prior ruling by the Court’s Pre-Trial Chamber. The unanimous decision paves the way for ICC Chief Prosecutor Fatou Bensouda’s office to investigate crimes committed by all parties to the conflict — the Taliban, the Afghan government, and the United States. It also clarifies the role of the Pre-Trial Chamber in reviewing decisions by the prosecutor’s office to initiate investigations under its own initiative. Indeed, going forward the Pre-Trial Chamber will have a more limited role in this and other cases, and the Prosecutor has been handed more power.

The decision has already provoked a strong reaction from those who believe the United States should not be investigated by the Court for alleged acts of torture carried out in Afghanistan and at various remote locations in other countries as part of the conflict with the Taliban and al-Qaeda. This article briefly summarizes the Court’s findings and offers some preliminary thoughts on the decision’s broader implications as well as next steps we can expect in the process.

New Limits on Judicial Review of Prosecutorial Discretion

There are three mechanisms through which a situation may be examined by the ICC Office of the Prosecutor: 1) referral by a State party; 2) referral by the United Nations Security Council; or 3) on the initiative of the prosecutor (referred to as a “proprio motu” examination). The Afghanistan situation falls into the third category, as the preliminary examination was initiated by the prosecutor’s office exercising its proprio motu powers.

Pursuant to Article 15 of the Rome Statute, when the prosecutor’s office initiates its own “preliminary examination” it cannot unilaterally transition the process into a full, formal investigation, but must request authorization to do so from the Pre-Trial Chamber. Article 15 also requires the Office of the Prosecutor to conduct its own internal assessment of whether “there is a reasonable basis to proceed with an investigation” before requesting that the Pre-Trial Chamber authorize a formal investigation. The operative sections of the Article states:

If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected. …

If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation … .

Separately, in all cases, Article 53 of the Rome Statute directs the prosecutor to assess, inter alia, whether opening a full investigation would “serve the interests of justice.”

To reach yesterday’s decision, the Appeals Chamber had to assess the scope and nature of the Pre-Trial Chamber’s review of prosecutorial decision-making. More specifically, the Appeals Chamber assessed the nature of the relationship between Articles 15 and 53 of the Rome Statute in terms of the Pre-Trial Chamber’s gatekeeping role vis-à-vis the authorization of investigations following a proprio motu preliminary examination.

The Pre-Trial Chamber previously declined to authorize an investigation in the Afghanistan situation, based on the Chamber’s finding that such an authorization would not serve the “interests of justice” under Article 53. In terms of the scope of its review, the Pre-Trial Chamber held that such assessment:

must include a positive determination to the effect that investigations would be in the interests of justice, including in relation to the gravity of the alleged conducts, the potential victims’ interests and the likelihood that investigation be feasible and meaningful under the relevant circumstances. Specific individual responsibilities, to the contrary, are, and should remain, outside the scope of the proceedings. (para. 35)

The Appeals Chamber disagreed, holding that the Pre-Trial Chamber erred by engaging in any assessment of whether an investigation would serve the interests of justice. In its first pronouncement on the issue, the Appeals Chamber held that the Pre-Trial Chamber is only mandated to review prosecutorial assessments of the interests of justice in situations where the prosecutor’s office exercises its discretion to decline to open an investigation following the referral of a situation by a state party or the U.N. Security Council. Conversely, in situations where the prosecutor initiates a preliminary examination and seeks authorization to proceed with a formal investigation, the Appeals Chamber held that the Pre-Trial Chamber’s sole role is:

to assess the information contained in the Prosecutor’s request to determine whether there is a reasonable factual basis to proceed with an investigation, in the sense of whether crimes have been committed, and whether the potential case(s) arising from such investigation would appear to fall within the Court’s jurisdiction … (para. 45).

After finding that the Pre-Trial Chamber had erred in reviewing the interests of justice under Article 53 at all, the Appeals Chamber declined to formally opine as to whether the Pre-Trial Chamber had abused its discretion in is substantive assessment of the interests of justice. The Appeals Chamber did, however, strongly suggest its deep disagreement with the Pre-Trial Chamber’s assessment of the interests of justice, based on three observations:

First, the Appeals Chamber underlines that article 53(1) of the Statute is formulated in the negative – the Prosecutor must consider whether there are ‘reasons to believe that an investigation would not serve the interests of justice’ and need not affirmatively determine that an investigation would be in the interests of justice, as suggested by the Pre-Trial Chamber. Second, the Appeals Chamber notes that the Pre-Trial Chamber’s reasoning in support of its conclusion regarding the ‘interests of justice’ was cursory, speculative and did not refer to information capable of supporting it. Third, there is no indication that the Pre-Trial Chamber considered the gravity of the crimes and the interests of victims as articulated by the victims themselves in conducting this assessment. (para. 49)

After finding that the Pre-Trial Chamber erred in this way, the Appeals Chamber further found that the Pre-Trial Chamber’s decision not to authorize an investigation had rested wholly on this improper assessment. As such, the Appeals Chamber noted that the Pre-Trial Chamber itself had otherwise stated that “there is a reasonable basis to believe that the incidents underlying the Request [to authorize an investigation] occurred” and, further, that “all the relevant requirements are met as regards […] Jurisdiction.” The Appeals Chamber then authorized the prosecutor’s office to proceed with an investigation, rather than remanding proceedings to the Pre-Trial Chamber to make its own decision on the matter.

Consequently, the ICC Office of the Prosecutor has now been officially authorized:

to commence an investigation ‘in relation to alleged crimes committed on the territory of Afghanistan in the period since 1 May 2003, as well as other alleged crimes that have a nexus to the armed conflict in Afghanistan and are sufficiently linked to the situation and were committed on the territory of other States Parties in the period since 1 July 2002’. (para. 79).

In terms of the general scope of the investigation, the Appeals Chamber, relying on Article 54 of the Rome Statute outlining the prosecutor’s investigatory duties, stated that “in order to obtain a full picture of the relevant facts, their potential legal characterisation as specific crimes under the jurisdiction of the Court, and the responsibility of the various actors that may be involved, the Prosecutor must carry out an investigation into the situation as a whole” (para. 60). Thus, as her office proceeds with its investigation, Bensouda may expand her inquiry wherever the evidence takes her, so long as she remains within the bounds of her general jurisdictional competence.

In terms of crimes physically occurring outside of Afghanistan, the Appeals Chamber concluded 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. Rather, a careful analysis of the circumstances of each case will need to be carried out to establish whether there is a sufficient nexus. (para. 76).

Consequently, the Chamber authorized the Office of the Prosecutor to investigate potential war crimes occurring on the territory of ICC member states in order to determine, upon a case-by-case analysis, whether sufficient links exist between such crimes and the armed conflict in Afghanistan. This finding is significant because it clearly authorizes the prosecutor to investigate alleged U.S. acts of torture committed as part of the war on terror, so long as such acts may be connected to the war in Afghanistan.

In submissions to the Court, the Office of the Prosecutor argued that “a limited number of alleged crimes associated with the Afghan armed conflict are alleged to have been committed on the territories of Poland, Romania and Lithuania, which are all parties to the [Rome] Statute.” More specifically, the prosecutor asserted that:

from 2002-2008, individuals allegedly participating in the armed conflict in Afghanistan, such as members of the Taliban or Al Qaeda, Hezb-e-Islami Gulbuddin and other militant groups, were allegedly transferred to clandestine CIA detention facilities located in those countries and are alleged to have been subjected to acts constituting crimes within the jurisdiction of the Court. (para. 49)

Implications of the Appeals Chamber’s Decision

The Appeals Chamber’s decision is already being declared a victory against impunity by many international justice and victims’ rights advocates (see for example, here, here and here). To be sure, the decision can be interpreted as a sharp rebuke by the Appeals Chamber against what it clearly perceived to be judicial meddling by the Pre-Trial Chamber in the Afghanistan situation.

The decision also clearly permits the ICC prosecutor’s office to investigate all sides in a particularly long, highly visible, and highly contentious armed conflict, whereas to date, the Court has largely investigated one (or more, but not all) sides to a conflict involving the commission of alleged atrocities. Moreover, many advocates and activists long committed to efforts to hold the United States accountable for its widespread use of torture in the wake of 9/11 will see today’s decision as a positive development.

Nonetheless, the authorization of an investigation is merely one — relatively early — step in the ICC process. U.S. Secretary of State Mike Pompeo has already leveled a scathing rebuke, calling the decision to authorize an investigation a “truly breathtaking action by an unaccountable political institution, masquerading as a legal body.” He also suggested, without providing specifics, that the investigation could endanger the recent Afghan peace deal. Echoing former National Security Advisor John Bolton’s caustic rejection of the ICC’s jurisdiction in September 2018, Pompeo pledged that the United States “will take all necessary measures to protect our citizens from this renegade, so-called court.”

In addition to Pompeo’s hostile statements, Sen. Ted Cruz (R-TX) issued his own press release, calling the decision “an explicit assault on the sovereignty and security of the United States and again, suggesting that the ICC is a “political organization targeting America and [its] allies, including Israel, to advance the political agendas of hostile countries which themselves often lack the rule of law.” Cruz also stated an intention to undermine the decision, “including and especially through a United Nations Security Council resolution that would prohibit the ICC from prosecuting the nationals of non-member states.” Article 16 of the Rome Statute allows the Security Council to suspend investigations or prosecutions for one year by the passing of a resolution. Such resolutions may be renewed and there is no stated limit on the number of renewals permitted. However, Cruz appears to suggest a more drastic, permanent limitation on the Court’s jurisdictional reach through a Security Council resolution.

Aside from U.S. threats against the Court, there is also no guarantee the prosecutor will be able to ever secure sufficient evidence to prosecute any U.S. citizen, let alone effectuate an arrest warrant against one and bring the individual to The Hague to stand trial.

Also, the crimes alleged against the United States pale in comparison, at least in terms of the overall number of direct victims, to those alleged against the Taliban, or even the Afghan government. For example, in its initial decision, the Pre-Trial Chamber noted that reported civilian casualties in Afghanistan during the period 2009-2016 alone “exceed[ed] 50,000, of which 17,700 [were] deaths and over 33,000 [were] injuries” (para. 66). These figures raise questions about how the prosecutor might assess the gravity of potential individual cases and select which suspects to pursue. As Alex Whiting stated in a previous Just Security post, this could be a complicated assessment for various reasons.

It is also unclear how today’s news might affect the peace negotiations currently underway in Afghanistan, or how ICC member states allied with the United States might react to efforts by the prosecutor’s office to investigate alleged acts of torture carried out by the United States on their territory.

These and many more issues remain outstanding and unclear at this time. What is clear, however, is that the ICC Appeals Chamber and the Office of the Prosecutor have now both defied the United States, and a formal ICC investigation of crimes allegedly committed by the Taliban, Afghan forces, and members of the U.S. military and CIA is at least nominally underway.

Image – A Casa 235 turboprop plane with registration number N168D taxis along a runway at Ruzyne Airport April 8, 2005 in Prague, Czech Republic. According to airport flight records the plane was registered to the firm Aero Contractors, based in North Carolina, and was scheduled to fly from Prague to Kabul, Afghanistan. In May, 2005 the New York Times reported that Aero Contractors was involved in transporting terrorism suspects to third countries. And on November 17, 2005, Agence France Presse reported that a plane with registration number N168D and owned by Devon Holding and Leasing passed through Danish airspace on October 3, 2005 en route from Iceland to Budapest.  (Photo by Pavel Horejsi/Getty Images)