Disagreement Between the ICC Pre-Trial Chamber II and the Office of the Prosecutor Regarding the Afghanistan Situation

Editor’s Note: This is the second article in a two-part series that explores the recent disagreement at the International Criminal Court pertaining to the Afghanistan situation. This article analyzes the International Criminal Court Pre-Trial Chamber II’s Oct. 31 decision—its first ruling on an Article 18(2) request—authorizing the Office of the Prosecutor to resume its investigation into the Afghanistan situation, as well as the OTP’s Nov. 22 appeal of part of that decision. The first article covered the prosecutor’s analysis of Afghanistan’s 2020 deferral request and its request to resume the investigation.

It finally happened—the Pre-Trial Chamber II of the International Criminal Court (ICC) has authorized the resumption of the Office of the Prosecutor’s (OTP’s) investigation into the Afghanistan situation. After understanding the OTP’s reasoning behind its request that the Pre-Trial Chamber II authorize the resumption of its investigation into the Afghanistan situation, as explained in the first part of this series, one can more fully understand why the chamber did, in fact, grant that request. The Pre-Trial Chamber’s decision is its first ruling on an Article 18(2) request—that is, a request for the ICC to preemptively halt its exercise of jurisdiction in deference to a state’s (here, Afghanistan) own, complementary domestic proceedings. This article will also cover the OTP’s Nov. 22 appeal of part of that decision, highlighting the current disagreement at the ICC with respect to the temporal scope of the situation and the alleged incidents (alleged crimes and actors) covered in the investigation. 

Introduction 

The ICC began its preliminary examination of the Afghanistan situation 16 years ago, and it has yet to meaningfully progress beyond this, partially due to the government of the Islamic Republic of Afghanistan’s request that the court defer to Afghanistan’s own domestic proceedings in suspending its exercise of jurisdiction. After the Taliban took over Kabul on Aug. 15, 2021, many, including the OTP itself, thought that the court should recognize the “significant change of material circumstances” in the country and move quickly to authorize the investigation to resume. At the time, the Pre-Trial Chamber II chose not to do so, pointing to the open “question of which entity actually constitutes the State authorities of Afghanistan since 15 August 2021.” Now, more than a year later, after the OTP’s assessment of the Islamic Republic’s deferral request on its merits, the Pre-Trial Chamber II has ruled the other way. But, as reflected in the OTP’s Nov. 22 appeal of part of the Pre-Trial Chamber II’s decision, disagreements remain over the time period to which the OTP’s investigation is confined and which actors the OTP may investigate for their alleged crimes.

Why Did the Pre-Trial Chamber II Grant the OTP’s Request? 

The Pre-Trial Chamber II ultimately authorized the OTP to resume its investigation into the Afghanistan situation after assessing the material transmitted by Afghanistan that had been translated and made accessible to the Pre-Trial Chamber II by the OTP. Despite certain documentary limitations, the Pre-Trial Chamber was able to determine that the actors and conduct under OTP investigation “extend well beyond” the actors and conduct that Afghanistan had investigated as well as those it had convicted. Through its evaluation, the chamber concluded that “Afghanistan is not presently carrying out genuine investigations and that it has not acted in a manner that shows an interest in pursuing the Deferral Request.” 

In analyzing whether to authorize the resumption of the Afghanistan investigation pursuant to Article 18(2) of the Rome Statute, the Pre-Trial Chamber II accepts the majority of the OTP’s reasoning. For example, contrary to the view of the government of the Islamic Republic, the prosecutor had asserted that the state requesting deferral under Article 18 had to satisfy the court that deferral is justified; the Pre-Trial Chamber II similarly speaks of the onus being on the state to “show that investigations or prosecutions are taking place or have taken place.” 

Contrary to the OTP’s evaluation of the de facto authorities’ unwillingness or inability genuinely to carry out the investigation or prosecution of the relevant acts and persons, however, the Pre-Trial Chamber II skips the analysis entirely under Rome Statute Article 17(2) and (3). Instead, the chamber concludes the admissibility analysis after consideration of Article 17(1)(a) and (b), stating, “Inaction by the State having jurisdiction means that the question of unwillingness or inability does not arise, and a case would be admissible before the Court.” 

The OTP and Pre-Trial Chamber also differ in approaches to speaking about different Afghan regimes. While the OTP took care to reference either the “Government of the Islamic Republic of Afghanistan” or “the authorities currently representing Afghanistan,” the Pre-Trial Chamber II speaks, throughout, of “Afghanistan.” Perhaps inherent in this referencing is an understanding that the chamber has reached its own determination regarding the current de facto authorities and de facto government, notwithstanding its lack of response from the U.N. secretary-general and the Bureau of the Assembly of States Parties to the Rome Statute regarding “which entity actually constitutes the State authorities of Afghanistan since 15 August 2021.” It is understandable that the Pre-Trial Chamber would not want to pronounce on contentious issues such as governmental recognition of a de facto regime. It is, nonetheless, interesting that the chamber decided to make its current ruling at all, having seemingly not yet received a definitive decision either way—one that it had previously said was a prerequisite. 

Also of note is the way the Pre-Trial Chamber criticizes both the Afghan state and the OTP for their missteps regarding translation. First, the chamber lambasts the OTP’s translation of certain government documents into English and not others, without explaining the bases on which it had done so. Noting that the prosecution is “effectively a ‘party’ to the present proceedings,” the chamber states that it is “not appropriate” for the OTP to “decide which of the documents transmitted by Afghanistan are worth translating for the purpose of the Chamber’s consideration.” Second, the chamber condemns the way Afghanistan provided a wealth of material in support of its deferral request, in languages in which the court does not work, without explaining which of those materials it regarded as the most important. The Pre-Trial Chamber II highlights that the burden is on the state requesting deferral to ensure that the chamber can analyze the materials in support of its request. 

The OTP’s “Deprioritization” of Certain Parts of the Investigation

In a press release issued on Sept. 27, 2021, ICC Chief Prosecutor Karim Khan stated that he would focus the OTP’s Afghanistan investigation “on crimes allegedly committed by the Taliban and the Islamic State – Khorasan Province” and would “deprioritise other aspects of this investigation.” Compared to the OTP’s initial November 2017 request for authorization of an investigation into the Afghanistan situation, this bifurcation of priorities connotes a deprioritization of crimes allegedly committed by the Afghan National Security Forces and other forces of the former government, members of the U.S. armed forces and CIA, and members of international armed forces. As Khan’s statement does not mention the Haqqani Network, which former ICC Chief Prosecutor Fatou Bensouda identified as an armed group “affiliated with the Taliban,” it is unclear whether the group will be prioritized or deprioritized under the new approach. Khan’s press statement also ostensibly represents the inclusion of a new party under investigation in the form of the Islamic State-Khorasan Province (IS-K). 

While Khan’s decision was met with much scrutiny over its unequal application of the rule of law and apparent creation of a “hierarchy of victims: those who have allegedly suffered abuses by weaker nations or armed groups are far more likely to see action from the Court,” it was also, unsurprisingly, welcomed by U.S. government representatives. For example, a State Department representative stated that the U.S. is “pleased to see that the ICC prioritized its resources to focus on the greatest of allegations and atrocity crimes … [having] long objected to the ICC’s attempt to assert jurisdiction over nationals of non-state parties such as the United States absent the consent of the state or a UN Security Council referral.” In its Oct. 31 filing, the Pre-Trial Chamber II also described the concerns of some victims over this OTP decision, with many troubled by the facts that the decision was communicated through a mere press statement, and not official channels, and that it engendered a focus on crimes allegedly committed by certain parties, and not others, before any investigations were even carried out. 

At the end of paragraph 58 and in paragraph 59 of the Oct. 31 filing, the chamber unequivocally rebukes the investigatory focus in the OTP’s press release. Specifically, the chamber states that its current authorization decision relates to all alleged crimes and actors that the prosecutor originally identified in its request to authorize an investigation, and that “[a]lleged crimes unrelated to such situation and conflicts or related to any new armed conflict(s) … and new parties to such a conflict, fall outside the scope of the investigation as authorised.” The chamber even goes so far as to highlight, in a footnote, the discrepancy between actors identified as being subject to investigation in the November 2017 request to authorize an investigation and the September 2021 press release; IS-K had not previously been referenced as an actor under investigation in the Afghanistan situation. Finally, Pre-Trial Chamber II seems to hint at the ability—or perhaps even desirability—of the OTP to either apply to enlarge the scope of its current investigation or request the authorization of a parallel investigation in respect of other conflicts or parties: “[A]lthough the Prosecution may, of course, submit a request under article 15 of the Statute to either broaden an investigation or open a new one.” 

The OTP’s Appeal of Paragraph 59

On Nov. 7, the OTP notified the ICC of its intent to appeal a part of the Pre-Trial Chamber’s decision, and on Nov. 22, it filed that appeal. The OTP argues that the Pre-Trial Chamber’s instructions concerning the scope of the investigation do not comport with the parameters of the situation set out by the Appeals Chamber in its 2020 judgment and, thus, appeals paragraph 59 of the Pre-Trial Chamber II’s Oct. 31 decision. Specifically, the OTP understands the Pre-Trial Chamber to have limited the temporal scope of the investigation to exclude “any crime occurring after 20 November 2017 (the date of the request) or 5 March 2020 (the date of the Afghanistan Appeals Judgment authorising the investigation)” and to have limited the personal and material scope of the investigation to exclude “any crime committed by ‘new parties,’” including IS-K.

The OTP argues that the Pre-Trial Chamber erred in both law and fact on the basis of two grounds: first, “by limiting the scope of the Court’s jurisdiction to crimes pre-dating the Prosecutor’s Request or the Afghanistan Appeal Judgment authorising the investigation” and, second, “by misreading the Prosecution’s article 15(3) application.”

Regarding the first point, and the temporal scope of the situation, the OTP makes three assertions. First, it asserts that the Appeals Chamber has already articulated the scope of the situation and of the court’s jurisdiction in Afghanistan. The prosecution notes that, at the end of the preliminary examination stage, it is merely required to demonstrate whether it has met the threshold determination that there is a reasonable basis to believe that “a crime” has occurred within the jurisdiction of the Court. Any other illustrative examples of crimes within the court’s jurisdiction are just that, examples, to illustrate “a threshold that has already been met.” The prosecution also points out the impossibility of identifying crimes, in a request for the authorization of an investigation, that occur after the submission of that request. It thus contends that it is unnecessary to obtain further Article 15(4) authorization on those such crimes prior to the time when the prosecution might investigate them and that it is unworkable to obtain further Article 15(3) authorization.

Second, the OTP underscores the binding nature of the Appeals Chamber’s determination on the scope of the court’s jurisdiction in Afghanistan. The prosecution stresses that, based on the Appeals Chamber’s ruling regarding the jurisdictional parameters of the situation, after determining deferral was unwarranted, the Pre-Trial Chamber could do nothing more than to authorize the investigation’s resumption. And third, the OTP backs its claims with jurisprudential analysis, asserting that the principles in the appeals judgment comport with other principles consistently affirmed by the court. 

Regarding the second error of the chamber and the nexus required between an individual case and the overall situation, the OTP contends that, in its original request to authorize an investigation, it had sought that any authorized investigation would not be limited to the incidents and groups of perpetrators it mentioned in its original request. Even though the OTP spoke to specific incidents and groups of perpetrators, it nonetheless maintains that it had been clear that any reliance on such incidents and groups were only “for the limited purpose of the Request,” and that it “should be able to conduct an investigation into any other alleged crimes that fall within the scope of the authorised situation.” The prosecution even notes that it had specifically referenced IS-K in its original request, dispelling any notion that IS-K was, in fact, a “new party to the conflict.”

As a remedy, the OTP requests that the chamber correct and amend the identified legal and factual errors in paragraph 59 and “confirm the scope of the Court’s jurisdiction in this situation in the terms previously articulated by the Appeals Chamber.” 

What Does This Mean for the Scope of the Situation and the Court’s Jurisdiction in Afghanistan? 

As the Pre-Trial Chamber II noted in its Oct. 31 decision, all individuals who made representations pursuant to the chamber’s Article 18(2) collection process expressed that they would be in favor of resuming the investigation. Among other reasons, victims noted a desire to end impunity and prevent future crimes, the desire to ensure a genuine and timely investigation, and the belief that the court’s investigation would allow victims’ voices to be heard. Although the Pre-Trial Chamber has now authorized the resumption of the investigation, its actual scope is unclear. 

The Pre-Trial Chamber II and the OTP disagree about the scope of the situation, with the OTP believing that scope is temporally, personally, and materially larger than the chamber believes it to be. Indeed, the Pre-Trial Chamber seems to be more than hinting that a new investigation should be opened in Afghanistan, perhaps post-August 2021. This would not be the first time the court has critically examined the sufficiency of the required nexus between an individual case and an overall situation (see, for example, the Pre-Trial Chamber I’s 2011 Mbarushimana decision). 

It is now up to the Appeals Chamber judges, with Judge Piotr Hofmański presiding, to rule on the OTP’s appeal. Responses to the appeal brief are solicited both from victims—those already participating and those who wish to participate under Article 93 of the Rules of Procedure and Evidence—and from the “Islamic Republic of Afghanistan” by Dec. 15. If the Appeals Chamber’s March 2020 judgment acts as prologue, it seems that the Appeals Chamber likely will side with the OTP. In that judgment, the Appeals Chamber confirmed: “[T]he Prosecutor is authorised to commence an investigation ‘in relation to alleged crimes committed on the territory of Afghanistan in the period since 1 May 2003, as well as other alleged crimes that have a nexus to the armed conflict in Afghanistan and are sufficiently linked to the situation and were committed on the territory of other States Parties in the period since 1 July 2002.’”