On April 12, 2019, the three judges of the Pre-Trial Chamber II of the International Criminal Court (ICC) unanimously declined to authorize the Prosecutor’s request to conduct an investigation into the situation in Afghanistan. [ICC Press Release] The investigation was set to examine alleged war crimes and crimes against humanity related to the conflict in Afghanistan, and to examine the responsibility of the Taliban and other armed groups, and of Afghan and United States armed forces. See ICC, Situation in the Islamic Republic of Afghanistan, ICC-02/17-33, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan, 12 April 2019, paras. 15, 18-24. Despite the Pre-Trial Chamber’s determination that the Prosecutor’s request was credible and met the jurisdictional and admissibility requirements, the Pre-Trial Chamber rejected her request to proceed because it determined the investigation would not serve the “interests of justice” given the limited prospects of a successful investigation that would lead to prosecutions. See id. at paras. 87, 96. Many observers have described the Court as caving to political pressure from the U.S., while others view the decision as a pragmatic use of the Court’s resources. [Amnesty International; Just Security] The Pre-Trial Chamber’s decision came shortly after the U.S. revoked the ICC Prosecutor’s visa to the U.S. and threatened to sanction the Court should it pursue cases against American citizens. [IJRC] The Office of the Prosecutor indicated it “will further analyse the decision and its implications, and consider all available legal remedies” in response. [ICC Statement]

Procedural Background

A preliminary examination on Afghanistan initially opened in 2006. See Situation in the Islamic Republic of Afghanistan, 12 April 2019, at para. 44. However, the Prosecutor has faced a many obstacles since then, primarily as a result of the lack of cooperation from the authorities under investigation—a reason cited by the Pre-Trial Chamber for rejecting this investigation. See id.

In November 2017, the Prosecutor submitted a request for authorization to initiate an investigation proprio motu pursuant to Article 15 of the Rome Statute. See Situation in the Islamic Republic of Afghanistan, 12 April 2019, at paras. 2, 5, 29. The Prosecutor’s requested authorization to investigate the alleged crimes under the ICC’s jurisdiction that have taken place in Afghanistan since May 1, 2003 (the date that the Rome Statute entered into force in Afghanistan), and alleged crimes that “have a nexus to the armed conflict” but have been committed outside of Afghanistan, in the territory other States parties to the Rome Statute, since July 1, 2002. See id. at para 5.

The Prosecutor provided evidence indicating that since June 19, 2002, the country has been in a state of non-international armed conflict between various armed groups against both the Afghan government and international armed forces supporting the government. See id. at para. 16. Since that time, the evidence shows that in the context of the thousands of civilian deaths that have taken place, many are likely to constitute crimes against humanity and war crimes. See id. at para. 15. The request classifies the crimes into three categories according to the alleged perpetrators: (1) the Taliban and other non-state armed groups, (2) the Afghan armed forces, and (3) U.S. armed forces and the U.S. Central Intelligence Agency (CIA). See id. at paras. 17, 18-24. A fourth category was included addressing “other acts by members of international armed forces,” which held out the possibility of uncovering crimes resulting from military operations or torture committed by international armed forces other those falling within the other three categories, but indicated that more information is required to determine whether these events constitute crimes under the Court’s jurisdiction. See id. at para. 25.

A significant number of victims submitted representations to the Pre-Trial Chamber complimenting the information provided by the Prosecutor. See id. at para. 28. In total, the Pre-Trial Chamber received 794 representations on behalf of 6,220 individuals, 1,690 families, 26 villages, one institution, and millions of victims. See id. at para. 27.

The Pre-Trial Chamber’s Analysis

In deciding whether or not to authorize the Prosecutor’s request proprio motu, the Pre-Trial Chamber must make a determination as to whether there is a “reasonable basis” to initiate an investigation and whether the jurisdictional requirements are met before authorizing the investigation. See id. at para. 29. This scenario is distinct from situations in which a State or the United Nations Security Council refers a situation in that the Pre-Trial Chamber exercises heightened discretion, ensuring that all requirements set out in Article 53(1) of the Statute are met. See id. para. 30. In addition to determining whether a “reasonable basis” exists, the Pre-Trial Chamber will consider whether an investigation would “serve the interests of justice,” which requires a consideration of the gravity of the crimes alleged, the interests of the victims, and the feasibility of the investigation under the circumstances. See id. at paras. 33-35.

Jurisdiction & Admissibility

Before addressing these issues, the Pre-Trial Chamber determined whether the crimes alleged fall within the jurisdiction of the Court and whether the request met the admissibility requirements laid out in the Rome Statute. The Pre-Trial Chamber acknowledged that nearly all of the information the Prosecutor provided was based on credible sources and was well-corroborated, stating that “there is reasonable basis to believe that the incidents underlying the Request have occurred.” See id. at paras. 46, 48. It further found that the jurisdictional requirements of ratione loci (the crimes alleged occurred in the territory of a State that is party to the Rome Statute or has accepted the Court’s jurisdiction), ratione materiae (the crimes alleged constitute crimes within the Court’s jurisdiction), and ratione temporis (the crimes alleged occurred after the Rome Statute came into force in the State) had all been met. See id. at paras. 45, 49, 60, 87. With respect to admissibility, the Pre-Trial Chamber was satisfied that the two-fold assessment required under Article 17 of the Rome Statute had also been met: whether the States involved are not or have not conducted their own judicial proceedings on these issues (complementarity), and whether the crimes alleged meet the Court’s severity threshold (gravity). See id. at paras. 71, 75, 77, 79, 86.

Interest of Justice

The final area of assessment the Pre-Trial Chamber undertook was to determine whether under Article 53(1)(c) there are “substantial reasons to believe that an investigation would not serve the interests of justice.” See id. at para. 87. The Pre-Trial Chamber noted that without the existence of a clear definition or other statutory guidance on this matter, it would make the consideration based on the “overarching objectives” of the Rome Statute—that the investigation would aid in “the effective prosecution of the most serious international crimes, the fight against impunity and the prevention of mass atrocities.” See id. at para. 89. It then stated that an investigation could only be considered to serve the interests of justice if it appears likely to result in a legitimate investigation and prosecution of cases within a suitable time frame. See id.

Here the Pre-Trial Chamber stated that three issues were of particular importance to this assessment in the Afghanistan investigation. See id. at para. 91. First, the Pre-Trial Chamber concluded that the amount of time that had passed between when most of the crimes were committed and the submission of the request would make it unlikely that viable evidence would be available. See id. at para. 93. Second, the Pre-Trial Chamber determined that changing political situations in the relevant States, including in States not parties to the Statute, make the prospect of cooperation from the governments involved and the surrender of suspects substantially unlikely. See id. at para. 94. Finally, the Pre-Trial Chamber noted that given the realities of the situation, the investigation would be costly and that this would detract from resources that could be allocated to investigations more likely to result in prosecutions. See id. at para. 95.

Thus, the Pre-Trial Chamber concluded that the potential for a successful investigation was significantly limited and that there was little chance that the objectives of the victims would be furthered by continuing. See id. at para. 96. It also indicated that pursuing an investigation that did not fulfill these aims and would possibly incite “hostility vis-a-vis the Court” and undermine its overall credibility. See id. It ultimately decided the investigation into the situation in Afghanistan would not serve the interests of justice and for that reason, declined the request. See id.

International Reaction

The Pre-Trial Chamber’s rejection of the investigation has been particularly controversial given the implication of U.S. forces in the crimes outlined. The Prosecutor’s information, based primarily on the findings of the U.S. Senate Select Committee on Intelligence, the U.S. Senate Armed Services Committee and the U.S. Department of defense, provided evidence that U.S. forces and the CIA had committed war crimes including torture and cruel treatment, outrages upon personal dignity, and rape and other forms of sexual violence “pursuant to a policy approved by the US authorities.” See id. 24.

Human rights experts and legal scholars have denounced the decision to stop the investigation. Human Rights Watch’s Param-Preet Singh said in a statement that the “ICC judges’ decision to reject an investigation in Afghanistan is a devastating blow for victims,” and that “[i]t sends a dangerous message to perpetrators that they can put themselves beyond the reach of the law just by being uncooperative.” [NPR] Biraj Patnaik, of Amnesty International stated that “the decision ultimately will be seen as a craven capitulation to Washington’s bullying and threats,” further weakening the Court’s credibility. [Amnesty International] Legal scholars have expressed their skepticism regarding the Court’s reasoning with respect to “the interest of justice” determination. [Opinio Juris]

Additional Information

The ICC was established by the Rome Statute, and officially opened in 2002. See ICC, About. The Court has the competence to hear four types of crimes, genocide, crimes against humanity, war crimes, and the crime of aggression. See Id. The ICC has had a total of 28 cases, of which the Court issued final convictions in six cases (eight trial convictions, two of which were overturned on appeal). See id. For more information on the International Criminal Court, visit IJRC’s Online Resource Hub. To learn more about the States’ human rights obligations, see IJRC’s Afghanistan Factsheet and United States Factsheet. To stay up-to-date on international human rights law news, visit IJRC’s News Room and subscribe to the IJRC Daily.