Afghanistan, the International Criminal Court and the interests of justice
This post is the result of one of those brief but fruitful conversations in the corridors of the School of Law, where Anni Pues currently works on a monograph that analyses prosecutorial discretion at the International Criminal Court (ICC), while Henry Lovat researches backlash against international courts and tribunals. While both sketch out their different opinions below, they are less divided on the ICC’s decision on Head of State immunity, which seems unlikely to contribute to bridging the gap between African States and the ICC.
The story so far:
Last month, the ICC Pre-Trial Chamber (PTC) decided not to authorize the Prosecutor to investigate crimes committed in the conflict in Afghanistan. After years of preliminary examinations, the Prosecutor wanted to finally start proper investigations into war crimes and crimes against humanity allegedly committed by the Taliban, the Afghan Forces and most critically the US Forces and the CIA. The eagerly awaited decision was a bombshell in scholarly circles. The judges found that while crimes within the jurisdiction of the Court had (allegedly) been committed and the potential cases would be admissible before the ICC, an investigation would not be in the “interests of justice”. The key considerations were that after 11 years of preliminary examinations evidence would be less readily available; that the political landscape in Afghanistan and key states ‘coupled with the complexity and volatility of the political climate still surrounding the Afghan scenario, make it extremely difficult to gauge the prospects of securing meaningful cooperation from relevant authorities’; and that an unsuccessful investigation would risk frustrating victims, creating the potential for hostility towards the Court.
Anni Pues considers the decision to be mistaken:
International justice is never free from politics. While judicial decisions should be made regardless of politics, ICC decisions always have political implications given their symbolic power. Any decision therefore needs to be assessed within the broader political context. Some key considerations linked to the political dimension:
The ICC is struggling to maintain its legitimacy after it focussed entirely on African countries for the first decade of its work. Under the second Prosecutor the Court moved slowly out of Africa. An investigation of crimes in Afghanistan, particularly the willingness to take on the CIA rendition programme, would have been an important step to show that the Court is not a neo-colonial tool of Western States.
The Trump Administration has exerted immense pressure on the Court over the last few months, including the unprecedented step of revoking the Prosecutor’s visa for the US and threatening further sanctions against ICC personnel. Taking into account the potential non-cooperation and the political climate in judicial decisions means bowing to political pressure and invites aggressive state behaviour opposing the Court. Investigating international crimes and delivering justice where powerful state actors are involved is a difficult task and the Prosecutor will most often not succeed while these actors are still in power. Using attacks against the Court, withdrawing from the Rome Statute or attempting to delegitimise it, has become a regular pattern of state actors potentially implicated in international crimes. One example is the Philippines withdrawal from the Rome Statute after the Prosecutor announced the preliminary examination into the ‘war on drugs’ that lead to thousands of extra-judicial killings. What next for a decision on investigating alleged Israeli crimes committed in the Occupied Palestinian Territories.
Beyond the political, some legal considerations are of key importance here:
Pragmatic considerations such as the availability of evidence and resource constraints are purely a matter of prosecutorial discretion. Lost evidence after years of preliminary examination can indeed be highly problematic. I have made that point here arguing that the Prosecutor should limit the length of preliminary examinations. But this does not justify the PTC failing to authorize the Prosecutor to attempt to investigate these alleged crimes. Judges are ill-placed to consider investigative resources and possibilities given that the Prosecutor has full authority as an independent organ of the Court over its own resources (art. 42(2) of the Statute). Also, this decision severely undermines the position of the Prosecutor as the chief strategist at the ICC. If judges take over in the driving seat and attempt to determine where the Court could and should investigate, the Court will ultimately lose any chance to develop coherent approaches to investigations and strategies of the Court. To quote Kenneth Culp Davis: Formal review, as the PTC authorization, is 'often at [its] best when … limited to correction of arbitrariness or illegality’ – any new exercise of discretion at this stage is damaging to the Court.
Finally, a word on victims’ and the interests of justice. Victims’ interests are meant as a key consideration in assessing the interests of justice at the ICC. The PTC brushes aside the views of over more than one million(!) victims that were represented in submissions to the court and that welcomed the prospect of investigations. Preventing frustration for victims by denying even an attempt of investigating leaving at least a small chance of achieving some justice is flawed and patronizing.
Why Henry Lovat thinks that the decision is defensible:
The doctrinal case against the decision is at best debatable: strong, plausible arguments can be made that the PTC was well within the “four corners” of the Rome Statute in making this decision and taking into account its own understanding of the “interests of justice”. Perhaps most fundamentally, it would be absurd for the PTC to be unable to review the Prosecutor’s approach to an issue that the latter is in any event required to take into consideration in electing whether or not to proceed with a proprio motu investigation.
One may quibble with whether or not the PTC made the right strategic decision in the case, but there is nothing in the Rome Statute or subsequent practice to suggest that the PTC should not be able to take into account a wide range of factors in assessing whether a given course of conduct is consistent with the interests of justice: the Prosecutor’s policy paper is often cited in interpreting the “interests of justice”, but this is simply the Office of the Prosecutor’s position – it does not bind the other organs of the court.
On the substantive merits of the decision, the broad approach by the PTC to the Prosecutor’s application – taking into account a broad range of factors – is arguably exactly what the inclusion of reference to the “interests of justice” in the Rome Statute should be for. Academics and activists often point to the overall aim of the court being to fight impunity: the best means of promoting this aim in different circumstances remains open to debate, however. While some decry the intrusion of “politics” into the realm of “law”, the decision arguably simply recognises the reality of the ICC’s position, and the need for the Court to take into account political and strategic reality in making decisions. Indeed, to the extent this is unavoidable, far better for such decisions to be made transparently, where they can be subject to scrutiny on doctrinal and policy grounds, rather than behind closed doors.
Last, it might be argued that this decision undermines (variously) the reputation, credibility, legitimacy and/or authority of the Court. This will undoubtedly be true in the eyes of some constituencies. Such claims though, risk overlooking the extent to which the Court’s reputation etc. varies from constituency to constituency: different actors and communities will perceive different courses of action as being reputation and legitimacy-enhancing or diminishing, and which constituencies matter most will vary from case to case. The organs of the Court (like other international institutions) accordingly need to cater to the concerns of multiple groups of stakeholders: these do not include only victims and civil society, they also extend to different groups of states and ultimately to the governments that set and have the ability to affect the Court’s mandate and effectiveness - and, indeed its continued existence - including that of the US.
None of this is to say that the PTC has necessarily made the right choice in declining the Prosecutor’s request in this case. Doctrinal debate on this point will doubtless continue, as will arguments over the strategic wisdom of the decision. To remain open-minded about the latter point, however, should not be understood as implying that the Court’s judges should not be able to ensure that the Court take strategic factors into account in determining whether a given course of conduct is consistent with the “interests of justice”. Rather, the availability of a wide latitude of discretion on this point is, provided exercised wisely and transparently, capable of enhancing rather than undermining the Court’s credibility and legitimacy in the eyes of key stakeholders, and hence advancing its ability to pursue the broader aim of ending impunity.