The ICC’s Investigation of Crimes in Afghanistan
On 5th March 2020, the Appeals Chamber at International Criminal Court, (ICC) overturned the earlier decision of the Pre- Trial Chamber and unanimously authorized investigation of war crimes and crimes against humanity in Afghanistan. This article discusses the jurisdiction of ICC in this specific matter, the flawed decision of the Pre- Trial Chamber and the future challenges.
The jurisdiction of ICC and perhaps even its role in the international sphere is best understood by referring to the Rome Statute, 1998 that led to its genesis. Article 5 of the Rome Statute provides that the crimes that come under the jurisdiction of the court include genocide, crimes against humanity, war crimes and the most recent crime of aggression adopted through the Kampala Amendment in 2010. In the present case, the ICC prosecutor sought the approval to try alleged crimes committed by the Taliban, Afghan National Security Forces, the US Military and Central Intelligence Agency (CIA) personnel. Afghanistan is a state party to the statute since May 1, 2003, but has not ratified the Kampala Amendment. Hence, the crimes that are alleged and triable by the court are crimes against humanity and war crimes committed in Afghanistan since May 1, 2003.
The first right to try an individual involved in any of the mentioned crimes is with the state and the ICC acts only as a court of last resort. The principle of complementarity that the ICC is premised on, governs the relationship between the ICC and national legal orders and allows the ICC to step in when the state is unable to or unwilling to genuinely investigate or prosecute as stated in Article 17. Under Article 13, the exercise of the jurisdiction can be triggered through three routes. The Prosecutor, Fatou Bensouda initiated investigation as per Article 15 in 2007.
When the Prosecutor initiates investigation proprio motu, the PTC has to determine if there is a reasonable factual basis for the investigation to proceed. When the Chamber pronounced its decision, it had determined that there existed the same and hence would be admissible before the ICC. However, it erred when it denied the request under Article 53 of the Statute concluding that the investigation at this stage would not serve the ‘interests of justice’. The Prosecutor argued that the jurisprudence suggests that ‘interests of justice’ addresses ‘exceptional circumstances’ where an investigation would be unwarranted. However, it seems as if the PTC extended the scope of this provision to assessing the success of the proposed investigation. The Appeals Chamber deliberated on the matter once again when an appeal was filed and concluded that the Pre- Trials Chamber is not required to assess the ‘interests of justice’ when the prosecutor opens investigation proprio motu and is necessary only when investigation is referred by State party or Security Council. The chamber supported this with a number of arguments by looking into the text and drafting history of the statute. Article 15’s text does not reference an ‘interest of justice’ analysis or Article 54. When interpreting Article 15(4), the fact that only limited and general information is needed to be included in the request before PTC implies that only a reasonable factual basis is to be assessed. Therefore, the Appeals chamber overturned the flawed decision of the PTC and authorized the investigation.
However, going forward the investigation will face some hurdles, the major one being the non- cooperation of the states. The U.S, who is not a member of the ICC has not welcomed the decision of the Appeals Chamber. The US has revoked the prosecutor’s visa and indicated further measures like imposition of financial sanctions against ICC personnel involved in the investigation and additional visa restrictions. In 2015, the state also claimed to have tried the perpetrators for detainee abuse, bringing complications to the complementarity principle. The Trump administration may also use the 2002 law, the American Servicemembers’ Protection Act more famous as the Hague Invasion Act that authorizes the use of force to rescue U.S troops detained in Hague. The legality of this act in an international sphere is left to be determined.
Only time will tell us if the civilians of Afghanistan will be liberated from their plight and see the lights of justice.