In summary, the Chamber believes that, notwithstanding the fact all the relevant requirements are met as regards both jurisdiction and admissibility, the current circumstances of the situation in Afghanistan are such as to make the prospects for a successful investigation and prosecution extremely limited. Accordingly, it is unlikely that pursuing an investigation would result in meeting the objectives listed by the victims favouring the investigation, or otherwise positively contributing to it. It is worth recalling that only victims of specific cases brought before the Court could ever have the opportunity of playing a meaningful role in as participants in the relevant proceedings; in the absence of any such cases, this meaningful role will never materialise in spite of the investigation having been authorised; victims’ expectations will not go beyond little more than aspirations. This, far from honouring the victims’ wishes and aspiration that justice be done, would result in creating frustration and possibly hostility vis-a-vis the Court and therefore negatively impact its very ability to pursue credibly the objectives it was created to serve.
By now much has been written about the International Criminal Court (ICC) Pre-Trial Chamber’s (PTC) Decision on the Situation in the Islamic Republic of Afghanistan, in which it put the kibosh on the Office of the Prosecutor’s (OTP) efforts to investigate, among other things, crimes allegedly committed by US armed forces and the Central Intelligence Agency, including contractors and other persons under their effective control (see here and here for my earlier posts on the OTP’s efforts to pursue this situation). Invoking Article 53(1)(c) of the ICC Statute the PTC found:
Having determined that both the jurisdiction and the admissibility requirements are satisfied, it remains for the Chamber to determine, in accordance with article 53(1)(c) of the Statute, whether, taking 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. (para 87)
This comes 28 pages into a 32-page decision that meanders ad nauseam before getting to the point, which, once finally there, leaves us with more questions than answers. Since others have provided insightful opinions on the legality of the PTC invoking (some might say appropriating) Article 53(1)(c) (here, here, here, here), I leave it to them to explain whether the PTC rightfully exercised its authority to reject an investigation which should have otherwise gone forward, where the ICC Prosecutor in exercising her authority declined to find that the interests of justice warranted a postponement or declination of an investigation (see here and here for my take of the OTP’s claims on the use or declination of use of the interests of justice)
Even if its reading of Article 53(1)(c) is correct (which I find unpersuasive – the reasoning is as unsatisfying as a hamburger that is all bun and no beef) the PTC’s decision does not pass the smell test. Something does not seem right. The timing and substance of the decision seem curiously strange.
Is it a coincidence or a convergence that the PTC, after dragging its feet for 1,5 years in figuring out whether the jurisdictional requirements for authorizing an investigation were met (it is not as if these judges were overwhelmed with work or the matter that difficult to resolve), issued the decision on the heels of US Secretary of State Mike Pompeo’s revocation of Madam Prosecutor’s and other ICC staff’s visa to enter the US for investigative purposes on the Afghanistan situation (here, here)? Ok, maybe we should not jump to such conclusions – the first shot at the ICC in general and at the OTP more specifically came some months ago from US National Security Advisor John Bolton (see my post here).
So, what to make of the PTC’s reading of Article 53(1)(c)?
The founders of the ICC obviously did not want a prosecution that would run amok or go rogue. They wanted a procedural framework where you have a judicial institution, the PTC, with significant role in overseeing the OTP’s investigative initiatives (for more on this, see my posts here, here, and here, here and here). It is not clear whether the founders also intended to grant the PTC the authority to prevent the OTP Prosecutor from carrying on its functions (investigating and, if appropriate, charging) where crimes fell within its jurisdiction and where the OTP believed that it was in “the interests of justice.” Given the oversight bestowed upon the PTC, the founders may have also intended that the PTC have the overriding discretion to intervene and deprive victims of their day in court in favor of a more just (or politically motivated) cause – especially considering that the ICC, like other international(ized) criminal tribunals and courts, has limited capacity to investigate, charge, and prosecute. This intention may be entirely sound considering the sui generis nature of the ICC, but if the founders of the ICC and drafters of the Statute wanted to impose this further restraint on the OTP, as asserted by the PTC, would not the Statute be explicit and unequivocal? Why leave such an important matter to be read into the Statute by the PTC?
What makes the decision leave a stench is that it seems so, so politically driven, with extraordinary ramifications – at least from the reasoning of the decision. The decision suggests that unless there is a prospect of an effective investigation and subsequent prosecution, better for the OTP to keep its powder dry – to select targets that are helpless, less likely to resist, or not protected by powerful patrons (permanent members of the United Nations Security Council (UNSC)). This pragmatic realpolitik approach in carrying out its mandate may be prudent – an act of self-preservation (does the ICC really want to take on the US, Russia, China, or its friends, allies, proxies, or satellites). But does it also not risk being a reckless capitulation of the legal and moral high-ground, a self-inflicted delegitimization?
Hyperbolic as this may sound, this decision may just be the tripwire that brings the ICC edifice down. I am not suggesting a stampede of States Parties running for the exit – though expect some African states that have been easy and convenient pickings to revive their calls to get out of the ICC. What I am suggesting, however, is that this decision paves the way for non-action and non-cooperation by states reticent to engage with the ICC. And I would not put it past some states engaging in behind-the-scene lobbying of the PTC (It can be subtly done through the embassies of the sitting judges – and yes, this occurs) to intervene as it has done in this situation.
Based on this decision, it is tempting to wonder whether the OTP will step back and reconsider some of its decisions to pursue preliminary examinations and to maybe even jettison some of its ongoing investigations. Would it not be prudent to simply decline to pursue examinations or investigations against Israel, Myanmar, Libya, or in any other place that can successfully resist scrutiny, decline access to ICC investigators, revoke visas to the ICC Prosecutor or her staff, or call upon certain UNSC permanent five members to pressure the ICC to look the other way in the interests of justice? Can it realistically be said that under such circumstances – however worthy the cause, atrocious the crimes or magnitude of victims – investigations will yield tangible results – charging, arresting, prosecuting, and convicting responsible individuals? If the answer is “no,” or “possibly not,” or even “yes, but not necessarily,” does this decision not open the door for more creative ways for the ICC to shirk its mandate? Most probably.
The decision has turned the concept of in the interests of justice from a prosecutorial discretionary sword to be used much like immunity or amnesty to give peace or transitional justice a chance (an incentive to stimulate behavioral change in exchange of declining or deferring restrained prosecution), into a legitimate impunity shield for states that find it offensive that the ICC dares exercise its rightful jurisdiction.
It is one thing for the PTC to exercise its authority in declining to find ICC jurisdiction based on the ICC’s statutory provisions and applicable jurisprudence, it is quite another thing to strip the OTP of its discretionary authority by determining that a meritorious investigation should not go forward. By usurping the OTP’s discretionary authority and claiming, as it does, that on each occasion where it is found that the OTP has jurisdiction to investigate alleged crimes, the PTC must then find that it is in the interests of justice (i.e. there is a high probability of an effective investigation that will lead to an equally if not higher probability of convictions, should anyone be charged and tried), the PTC usurps the OTP’s discretionary authority and undermines its independence. Madam Bensouda can huff and puff about what her office might do, but is not her (the OTP’s) credibility seriously compromised when proprio motu she decides to pursue a meritorious investigation?
And not that I want to sympathize with the OTP, considering how abysmally it has underperformed, but you must feel for Madam Bensouda. When she calls for no investigation (as in the case of the Mavi Marmara incident, see here, here, and here), the PTC overrules her and tells her to proceed anyway. When she calls on the PTC to act on South Africa’s failure to arrest Al-Bashir (and refer the matter to the UNSC – which referred the matter to the ICC in the first place), the PTC punts (see my post here). And now, when she does make a case for investigating a situation involving the US (as the PTC rightly acknowledges in its decision), the PTC takes the matter out of her hands in the interests of justice.
This decision not only excessively circumscribes the Prosecutor’s authority, but it also shows the PTC’s nimble willingness to appease powerful non-party states. It also make one wonder whether the ICC is so structurally flawed, so politically susceptible, so morally malleable, that it is only a matter of time before it self-destructs.