Opinio Juris – The Significance of the International Criminal Court Appeals Chamber’s Ruling in the Afghanistan Situation

On 5 March 2020, the International Criminal Court (ICC) Appeals Chamber authorised the opening of an investigation into the situation in Afghanistan, reversing the Pre-Trial Chamber II ruling. This essay examines the impact of the Appeals Chamber’s decision in respect to (i) the Prosecutor’s discretion in evaluating whether or not an investigation would be in the interest of justice, as well as (ii) the situations in which the ICC should proceed in its future work. In this respect, the author concludes that Prosecutor has the all clear to follow the evidence and should not be dissuaded from carrying out its mandate on account of political repercussions.

Interest of justice

The Appeals Chamber ruled that the Pre-Trial Chamber (PTC) lacked the authority to review whether the request filed by the Prosecutor to initiate an investigation into Afghanistan would serve the interest of justice pursuant to Article 53(1) of the Rome Statute. The judges considered that Article 15(4) directs the PTC to evaluate whether (i) there is a reasonable factual basis to proceed with an investigation and (ii) the case appears to fall within the jurisdiction of the Court. This is consistent with the discretionary nature of the power of the Prosecutor. In this respect, the Appeals Chamber note that Article 53(1) allows the Prosecutor not to proceed with an investigation in limited circumstances, if despite 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 and that the PTC has a role in the Prosecutor’s exercise of discretionary power only if she determines that there is a basis to initiate an investigation.

The Appeals Chamber also made clear that the PTC did not properly assess the interest of justice of the investigation. In fact, it stressed that the PTC reasoning was cursory, speculative, did not refer to information capable of supporting it and, above all, did not consider the gravity of the alleged crimes and the interests articulated by the victims themselves.