Still waiting for an International Criminal Court Afghanistan investigation

Legal Adviser Jonathan O’Donohue highlights the urgent need for Pre-Trial Chamber II to determine whether to authorize an investigation.

Whilst attention has understandably focussed on US Secretary of State Pompeo’s recent announcement of the government’s decision to impose visa bans on those involved in the International Criminal Court’s (ICC) potential investigation of crimes committed in the Afghanistan situation, the length of time that Pre-Trial Chamber II is taking to decide on the Office of the Prosecutor’s (OTP) request for authorization to commence the investigation also deserves scrutiny.

More than a year has now passed since Pre-Trial Chamber II was established and assigned the matter, yet there is still no sign of a decision. Regardless of the US attacks on the Court, the Chamber must authorise an investigation without further delay if the Court is to have any hope of delivering meaningful justice and reparation to victims.

Criticism that the ICC is being too slow in addressing crimes committed in the Afghanistan situation is far from new. The ICC Office of the Prosecutor took a decade to complete its preliminary examination. All that time, victims of crimes committed by the Taliban and affiliated armed groups, the Afghan National Security Forces (ANSF) and international armed forces have waited with little or no hope of accessing redress before Afghan, US or other coalition courts. Meanwhile, the OTP controversially prioritised crimes committed (usually by non-state actors) in some African situations, mostly with the strong support of the African states themselves and of powerful western states.

Finally on 20 November 2017, the Office of the Prosecutor took the long overdue step of applying to the Pre-Trial Chamber for authorization to open a full investigation. While much of the application focuses on crimes committed by the Taliban and affiliated armed groups and the ANSF, significantly it also addresses allegations of war crimes of torture and cruel treatment, outrages upon personal dignity, rape and other forms of sexual violence by US armed forces and the CIA. It also indicates that the investigation might examine allegations of crimes by other international armed forces. At last it seemed that the OTP might be turning a corner, taking action truly worthy of its mantra ‘without fear or favour’.

Following the application, Pre-Trial Chamber III was assigned to the situation and appeared to be moving towards making a prompt determination, as other Pre-Trial Chambers have done in authorizing other investigations. It requested additional information from the OTP on two occasions and, in accordance with the Regulations of the Court, victims were given the opportunity to present their views, concerns and expectations. By February 2018, the OTP had responded to the information requests and representations of 699 victims were submitted. The NGO Afghanistan Transitional Justice Coordination Group notes that the ‘victims came up with a clear, unified and strong message, calling on the Court to launch its investigation immediately’. A decision appeared likely within weeks.

However, on 16 March 2018, after six new ICC judges took office, the Presidency of the Court took the problematic decision of dissolving Pre-Trial Chamber III before it ruled on the request and instead assigned the Afghanistan situation to Pre-Trial Chamber II. The new Chamber was composed of the former Presiding Judge of Pre-Trial Chamber III – Judge Antoine Kesia-Mbe Mindua – and two new Judges: Judge Tomoko Akane and Judge Rosario Salvatore Aitala. The timing meant that a decision on the OTP’s request would inevitably be delayed as the new Judges would need to familiarise themselves with the process and the submissions in order to reach a decision.

A year later, Pre-Trial Chamber II has yet to deliver a decision, neither has it given any public indication of the reasons for the delay. The public records contain only a single decision to re-appoint Judge Mindua as the presiding judge.

According to Article 15(4) of the ICC Statute, the Pre-Trial Chamber has the rather straightforward task of reviewing the OTP’s request and determining, based on the information presented, whether the Office has demonstrated that there is a reasonable basis to proceed with an investigation. Indeed, Pre-Trial Chamber I recently remarked on the OTP’s conduct of preliminary examinations in relation to the Myanmar situation:
The reasonable basis to proceed standard at this stage is the lowest evidentiary standard provided for in the Statute. Therefore, the preliminary examination as such “does not necessitate any complex or detailed process of analysis” and the information available is not expected to be “comprehensive” or “conclusive” particularly taking into account the limited investigative powers at the Prosecutor’s disposal, compared to those provided for in article 54 of the Statute at the investigation stage.

All situations that the ICC addresses are inherently complex. But that still does not explain why this specific decision is taking so long. As FIDH points out ”in the four former authorisation requests, a decision has always been rendered relatively shortly after the request: 50 days for Burundi; 102 for Cote d’Ivoire; 106 for Georgia; and 125 for Kenya.” Pre-Trial Chamber II’s workload does not reveal any major conflicting demands.

Whatever the reasons for the delay in decision-making, it is damaging to the reputation of the ICC. Although it must be hoped that the political pressure exerted so far by the US against the investigation is not a factor, continued delays will only fuel allegations that the ICC is influenced by powerful western states. The delay by the OTP in making the application makes it all the more important that all organs of the Court demonstrate their commitment, determination, fairness, impartiality and independence in applying the Rome Statute to this situation. This includes conducting their work with unquestionable resolve in the face of political interference, no matter how powerful the states involved.

The delay also threatens the OTP’s ability to conduct an effective investigation, should it be ordered. As Pre-Trial Chamber I recognized in relation to the Prosecutor’s conduct of the Myanmar preliminary examination:

an investigation should in general be initiated without delay and be conducted efficiently in order for it to be effective, since “[w]ith the lapse of time, memories of witnesses fade, witnesses may die or become untraceable, evidence deteriorates or ceases to exist, and thus the prospects that any effective investigation can be undertaken will increasingly diminish”.

These reasons to avoid delay are equally relevant when a Pre-Trial Chamber considers a request for authorization to open an investigation.

Moreover, as Pre-Trial Chamber I also emphasised, delays in launching an investigation risk undermining the rights of victims, which the Court is mandated to respect:

Within the Court’s legal framework, the victims’ rights both to participate in the proceedings and to claim reparations are entirely dependent on the Prosecutor starting an investigation or requesting authorization to do so. The process of reparations is intrinsically linked to criminal proceedings, as established in article 75 of the Statute, and any delay in the start of the investigation is a delay for the victims to be in a position to claim reparations for the harm suffered as a result of the commission of the crimes within the jurisdiction of this Court.

The ICC has been examining the Afghanistan situation for more than 11 years. It is well and truly time for the Court to decide whether to open an investigation.

That is not to suggest that the prospect of an investigation is not daunting. It will further draw the ire of the US government, likely sparking a new wave of political attacks that go beyond visa restrictions to the US. Moreover, the on-going failures of the Assembly of States Parties to fully support the work of the ICC means there is no guarantee that the Court will receive the cooperation and resources it needs to be able to deliver effective justice. These and other obstacles to justice must be addressed. Nonetheless,inaction is not an option and the longer the Court waits the tougher the challenges will be.