On March 5, the International Criminal Court (ICC) Appeals Chamber (AC) authorized Prosecutor Fatou Bensouda to open an official investigation into the “Situation in Afghanistan,” a step Bensouda requested in 2017. In doing so, the AC reversed a controversial 2019 decision by ICC Pre-Trial Chamber (PTC) II, which denied Bensouda’s request on the ground that the investigation would not “serve the interests of justice.” Under Article 53 of the Rome Statute, the Prosecutor must consider “whether there are substantial reasons to believe that an investigation would not serve the interests of justice.”
Which raises the questions: What are the “interests of justice”? Why did the PTC doubt that an Afghanistan investigation would serve the interests of justice? And did the AC shed light on these matters? Unfortunately, as this post explains, the answer to the final question is no.
The Backdrop, and U.S. Outrage
Under the Rome Statute, the Prosecutor investigates entire “situations” rather than individual crimes, for the sake of even-handedness and completeness: a situation encompasses potential crimes committed by all parties to a relevant conflict. In Afghanistan, that includes crimes committed by the Taliban, Afghan government forces, and U.S. personnel. The war crimes alleged against U.S. personnel are the torture, sexual abuse, and degrading treatment of prisoners in Afghanistan and at CIA black sites in Europe during the Bush administration’s detention and interrogation program. While media have understandably focused on the U.S. strand of the investigation, American readers must not forget that the investigation involves the Taliban and Afghan government forces’ misdeeds, not only those of U.S. actors. It is not a selective investigation targeting the United States.
That’s not how the U.S. government sees it. Secretary of State Mike Pompeo blasted the decision of “this renegade, so-called court,” threatening to take “all appropriate steps” against the Court’s effort “to settle a political vendetta.” Pompeo’s language deserves some parsing. Evidently, investigating U.S. torture, rather than letting bygones be bygones, is a “political vendetta.” Defying U.S. pressure makes the ICC a “renegade” institution (although just who the Court is a “renegade” from remains a mystery, as currently 123 states, including most U.S. allies, are ICC members). On March 9, commentator Peter Harrell explained how the United States could use economic sanctions against the ICC, as if halting the investigation is a blameless goal of government — although Harrell admits that “there would be a degree of irony in the U.S. using a sanctions program that is designed to punish human rights abuses to sanction individuals involved in investigating alleged human rights abuses.” Indeed.
The United States has never accepted that the ICC has, in limited circumstances, the ability to exercise jurisdiction over nationals of non-member states: treaties don’t bind non-parties. The counter-argument is that the ICC investigation will examine only crimes committed on the territories of ICC member states, who have agreed to share their own (undeniable) criminal jurisdiction over their own territories with the ICC. Afghanistan joined the ICC in 2003. Poland has belonged since 2001, Romania since 2002, and Lithuania since 2003. These are the countries that the Prosecutor names in her request to open the investigation, because they allegedly hosted U.S.-run black sites where interrogations involving acts of torture related to the Afghan war took place. The United States denies that ICC member states have a right to share criminal jurisdiction with what Pompeo calls “an unaccountable political institution masquerading as a legal body.” Obviously, that is not the view of the states that joined the ICC and regard it as a legitimate international court. Rome Statute Articles 4 and 12 explicitly establish that the Court has jurisdiction “on the territory of any State Party” generally and in regards to specific crimes, the “State on the territory of which the conduct in question occurred” if such country either consents or is an ICC member.
Pompeo complains that the investigation is “reckless,” because it risks upsetting the recent Afghan peace deal brokered by the Trump administration. That seems unlikely: why would either the Afghan government or the Taliban resume their fighting merely because of a (very early stage) ICC investigation? In any event, there is a legal remedy: Article 16 of the Rome Statute empowers the United Nations Security Council to place a renewable one-year hold on investigations that pose a threat to peace and security. So far, there is no indication that the U.S. government is pursuing an Article 16 resolution in the Security Council.
The Appeals Chamber Decision
In an earlier piece for Just Security, Randle DeFalco helpfully discussed the main legal points in the AC’s decision, so there is no need to go into detail here. In (very) brief: it was a total win for the Prosecutor. The AC found that the PTC has no authority to review the Prosecutor’s “interests of justice” determination, except in cases where the Prosecutor declines to investigate on interests-of-justice grounds. That holding by itself reversed the PTC, without necessitating that the AC decide the second issue on appeal: whether the PTC abused its discretion when it analyzed the interests of justice.
In view of the controversies the PTC’s decision had provoked (for example here, here, and here), the AC addressed the abuse-of-discretion issue as well, and held that the PTC’s “cursory, speculative” reasoning was indeed an abuse of discretion (para. 49). Nor is the Prosecutor’s investigation limited to the specific incidents listed in her request, as the PTC held in its overturned decision.
As to remedy, the AC bypassed the PTC and authorized the investigation itself, rather than remanding back to the PTC. And, crucially, where the PTC rejected the Prosecutor’s linkage of the European black sites to the Situation in Afghanistan (see here, paras. 53-56), the AC reversed. It held that the PTC had misread Common Article 3 of the Geneva Conventions, which explicitly prohibits torturing and humiliating prisoners “at any time and in any place,” not only within the territorial boundaries of a relevant armed conflict. In order to establish the requisite “nexus” between acts of torture at remote black sites and the armed conflict in Afghanistan, the Prosecutor focused her request on interrogations connected with the Afghanistan conflict, excluding interrogations about unrelated matters. The AC endorsed her approach.
In short, the AC reversed the PTC on nearly every issue — with one major exception. It failed to address the PTC’s substantive findings that the investigation would not serve the interests of justice. The Prosecutor addressed these in her appeals brief, but the AC never reached the issue. Although it rebuked the PTC for abusing its discretion in its interests-of-justice analysis, this was a critique of the PTC’s process, not its arguments. The AC thus missed an opportunity to consider what the interests of justice entail.
The “Interests of Justice” Debate
Justice is a deep concept, and even the narrower concept of criminal justice is hardly less deep. U.S. lawyers know (or ought to know) that criminal prosecutors are supposed to seek justice rather than convictions, a mantra built into American Bar Association (ABA) ethics codes and standards for criminal prosecutors, drawing on Supreme Court lore (see e.g. the 1935 case Berger v. United States). But few pretend to know what this mantra means by “justice.” No doubt justice excludes prosecutions without probable cause, along with politicized prosecutions and investigations purely for harassment. Arguably, it requires prosecutors to take equitable factors into account in deciding whether to charge and if so, what charges to bring (see e.g. Standard 3-4.4 here). Many people advocate restorative justice and diversion programs for minor offenses and argue that harsh punishment is unjust.
But the ICC is mandated to deal with “the most serious crimes of international concern” (see Rome Statute preamble and Art. 1), and it is supposed to admit only cases that pass a “gravity” threshold (see Rome Statute, Art. 17). Yet, how gravity is (and indeed, should be) addressed remains unclear (see Margaret deGuzman’s forthcoming book) and the gravity threshold at the ICC may be getting lower because of a series of dubious decisions in the unrelated Comoros case — but that is a subject for another day. Ordinarily, few would deny that in grave cases involving quite serious, violent crimes, justice requires a prosecutor to go forward with an investigation and follow the evidence wherever it leads.
And that is how the ICC Prosecutor viewed the matter in a 2007 Policy Paper on the Interests of Justice: “there is a presumption in favor of investigation and prosecution wherever the [other] criteria [of evidence, jurisdiction, and admissibility] are met.” That seems right: among the core aims of the ICC, laid out in the preamble to the Rome Statute, is putting an end to impunity for grave international crimes, so declining to investigate should be the rare exception. However, the Rome Statute is worded in a way that severs the question of how grave the crimes are from the interests of justice in investigating them. The operative part of Article 53 of the Rome Statute states that “[t]he Prosecutor shall consider whether … [t]aking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.” What might such “substantial reasons” be?
The 2007 Policy Paper does not offer specifics. In its Afghanistan decision, the PTC offered three:
(i) the significant time elapsed between the alleged crimes and the Request; (ii) the scarce cooperation obtained by the Prosecutor throughout this time, even for the limited purposes of a preliminary examination, as such based on information rather than evidence; (iii) the likelihood that both relevant evidence and potential relevant suspects might still be available and within reach of the Prosecution’s investigative efforts and activities at this stage. (para. 91)
By “likelihood” the PTC evidently meant “unlikelihood,” because (iii)’s main point is that the Prosecutor would be wasting time and resources on the investigation, given that the Afghani government, Taliban, and United States would all do their best to keep evidence and suspects out of the ICC’s hands. In its penultimate paragraph (para. 95), the PTC makes its view clear that the Afghanistan investigation would not serve the interests of justice because it would consume scarce resources “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.”
This is not a frivolous argument. I must admit that when I first read the PTC’s opinion, I was incredulous. No doubt stonewalling by Afghanistan, the Taliban, and the United States might defeat the interests of justice, if we understand justice as ending impunity. And overpowering headwinds might be a prudential reason not to investigate. But it seems perverse to reward obstruction, and even more perverse to relabel defeat as “serving” the interests of justice. If you surrender, don’t call it a win (to quote Judge Judy: “don’t pee on my leg and tell me it’s raining”).
Framed in other terms, however, the PTC had an undeniable point. The ICC has limited capacity and resources. Its investigations are difficult and time-consuming, and its trials notoriously lengthy. Undeniably, investigating Afghanistan will divert resources from other important OTP activities. If pursuing justice in one situation entails not pursuing justice in others, it is not in the least perverse to suggest that choosing the latter over the former might serve the interests of justice.
The legal arguments upon which the AC based its decision never addressed this issue, however. They were about who gets to decide. The Prosecutor’s appeal brief was outraged at the PTC’s evident meddling with resource allocation decisions internal to the Office of the Prosecutor (OTP) (see here, paras. 141-149). As commentator Dov Jacobs complained, the PTC judges had made themselves comptrollers over the Prosecutor’s budget. Last week’s holding that the PTC has no authority to decide on the interests of justice confirms that the AC thought the PTC was meddling. I wholly agree that the trade-offs are for the Prosecutor to make, without being second-guessed by judges, and without having to explain herself to them.
Unfortunately, the AC opinion gives no hint about how — or whether — the Prosecutor ought to consider resource allocation in deciding whether an investigation might not serve the interests of justice. In fact, the OTP’s appeal brief denies that the Prosecutor ever needs to make a determination about the interests of justice to go forward with an investigation “in the absence of countervailing terms” (see here, paras. 26-27). But competing exigent demands on prosecutorial resources are “countervailing terms,” and so one might respond that in every situation the Prosecutor must ask herself whether an investigation advances or impairs the ICC’s larger mission of fighting impunity.
Or rather, one might respond this way unless, as a matter of law, the Prosecutor is forbidden from taking competing demands into account. There are obvious justice-based reasons for taking each individual situation solely on its own merits and evaluating it in a “need-blind” way, without considering cost or difficulty. Really, what we see here is a clash between two competing and credible views of “the interests of justice,” one focused on individual situations and one on the overall mission of the Court. The AC missed an opportunity to settle whether the Prosecutor is duty-bound or forbidden from taking resource tradeoffs into account when she decides that an investigation is not in the interests of justice.
Accountability for Torture
I don’t mean to suggest that the PTC’s pessimism about the Afghanistan investigation was justified. In her appeal brief, the Prosecutor vehemently disagreed that the obstacles are as bad as the PTC supposes (see here, paras. 123-138) and there is a lot of evidence about the CIA’s torture program. Although much of this evidence remains buried in the Senate Select Committee on Intelligence’s still-classified 6700-page torture report (a redacted, unclassified executive summary of which is available here), a great deal may be corroborated from other sources. Evidence about crimes of the Taliban and Afghan government forces may also be forthcoming.
Seeking accountability for torture is decidedly not a political vendetta. The powerful argument on behalf of the Prosecutor’s investigation of U.S. conduct is the utter failure of accountability in the United States itself — something I wrote about on Just Security nearly six years ago, on the tenth anniversary of the Abu Ghraib revelations, and documented at greater length in the final chapter of my book Torture, Power, and Law. The Prosecutor’s 2017 request to open an investigation contains a powerful reminder that the U.S. interrogation program involved torture (see paras. 192-217 of the request). Notably in this regard, the Prosecutor’s request rightly includes abusive conditions of confinement as part of the torture, a fact often overlooked in U.S. debates about waterboarding and other so-called “enhanced interrogation techniques.”
The issue of torture is still being litigated in the Guantánamo military commissions; and last fall’s feature film The Report highlighted the government’s strenuous efforts to induce national amnesia about this shameful episode. Whether the Prosecutor’s investigation succeeds or fails is unknowable; but at the very least, perhaps it will help fight amnesia.
Image – December 4, 2019 Appeals Chamber of the International Criminal Court (ICC) hearing to receive oral arguments in the appeals of victims and of the Prosecutor against Pre-Trial Chamber II’s “Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan”. The Appeals Chamber in this appeal is composed of Judge Piotr Hofmański, Presiding judge, Judge Howard Morrison, Judge Luz del Carmen Ibáñez Carranza, Judge Solomy Balungi Bossa and Judge Kimberly Prost. Source: International Criminal Court FLICKR page