In December 2019, the Appeals Chamber of the International Criminal Court (ICC) heard oral arguments on whether to overturn a prior decision refusing to authorize an investigation into the conduct of U.S. troops in Afghanistan. The arguments, which took place over three days, are the latest step in a process that has elevated tensions between the Trump administration and the ICC, and they frame the arguments the Appeals Chamber must grapple with and resolve.

The hearings also raised a number of procedural and substantive disagreements among the ICC prosecutor, victims groups and the Afghan government. While the prosecutor and victims largely agreed that the Pre-Trial Chamber’s decision blocking an investigation was incorrect and should be reversed, the prosecutor argued the victims lacked standing to directly bring an appeal. Part of the motivation for that position might stem from the prosecutor’s desire to maintain control over the appeals process and how to frame the legal issues before the Appeals Chamber. During the hearings, the Afghan government argued it had the political will to carry out genuine investigations and prosecutions over the crimes under consideration through its domestic legal system. Though unlikely given the track record of attacks on judges and law enforcement, if true, that scenario could bolster the country’s sovereignty by keeping the case out of the ICC.

The Pre-Trial Chamber Decision

On April 12, 2019, the Pre-Trial Chamber issued a controversial decision rejecting ICC prosecutor Fatou Bensouda’s request for authorization to investigate war crimes and crimes against humanity allegedly committed on the territory of Afghanistan since May 1, 2003, and other war crimes closely linked to the situation in Afghanistan that were allegedly committed on the territory of other states since July 1, 2002. According to Bensouda, the alleged crimes related to the United States include the war crimes of torture, cruel treatment and outrages on personal dignity by U.S. armed forces and CIA personnel. Specifically, Bensouda argued that she had a reasonable basis to believe that U.S. armed forces committed 54 instances of alleged mistreatment and that 24 additional instances were committed by the CIA. A majority of the alleged abuses occurred in 2003-2004.

Afghanistan has been a party to the ICC since February 2003, giving the ICC jurisdiction over the Rome Statute crimes of war crimes, crimes against humanity and genocide that occurred on Afghan territory after May 1, 2003, regardless of the nationality of the alleged perpetrator. However, Afghanistan has not ratified the Kampala Amendments incorporating the crime of aggression into the Rome Statute, so the court lacks jurisdiction over that crime on its territory. As Alex Whiting, the former prosecutions coordinator at the ICC explained, the Office of the Prosecutor has proceeded with a preliminary investigation into Afghanistan for the past 10 years.

Based on the information Bensouda submitted, the Pre-Trial Chamber determined that she established a reasonable basis to consider that crimes under ICC jurisdiction occurred in Afghanistan and that cases would be admissible before the ICC. However, the chamber noted a long period of time has elapsed between when the crimes occurred and when the investigation would begin, making it difficult to obtain and preserve evidence. In addition, the judges pointed to “subsequent changes within the relevant political landscape both in Afghanistan and in key States (both parties and non-parties to the Statute), coupled with the complexity and volatility of the political climate still surrounding the Afghan scenario” that make it difficult to “gauge the prospects of securing meaningful cooperation from relevant authorities for the future, whether in respect of investigations or of surrender of suspects.” Finally, the chamber pointed to the “significant amount of resources” an investigation would require in light of the ICC’s limited budget.

Overall, although the request for an investigation satisfied the ICC’s jurisdiction and admissibility requirements, “the current circumstances of the situation in Afghanistan are such as to make the prospects for a successful investigation and prosecution extremely limited” and would be unlikely to “result in meeting the objectives listed by the victims favouring the investigation.” Accordingly, the Pre-Trial Chamber concluded that an investigation at this stage would not serve the interests of justice and denied the request under Article 53 of the Rome Statute. This position generated controversy among court observers and frustration from victims; see these posts from Kevin Jon Heller and Dov Jacobs, and from Katherine Gallagher and Nikki Reisch, who represent victims.

The Office of the Prosecutor filed a Request for Leave to Appeal on June 7, 2019. On June 10 a group of victims also filed a Request for Leave to Appeal to the Pre-Trial Chamber and the Appeals Chamber along with a group of six other victims. One individual victim filed a Request for Leave to Appeal on June 12. Finally, the Pre-Trial Chamber authorized an appeal on Sept. 17.

Argument Overview

As set out in the hearing agenda, the Appeals Chamber held the hearings Dec. 4–6. Participants in the hearings included the prosecutor, three groups of appealing victims, cross-border victims, the Office of Public Counsel for victims and various amici curiae groups. The hearings addressed three issues, two procedural and one substantive: (a) the victims’ standing to bring an appeal under Rome Statute Article 82(1)(a), which provides each party the right to appeal a decision “with respect to jurisdiction or admissibility”; (b) whether the impugned decision (that is, the Pre-Trial Chamber’s decision rejecting the Office of the Prosecutor’s request for authorization) is a “decision with respect to jurisdiction or admissibility” within the meaning of Rome Statute Article 82(1)(a); and (c) the merits of the appeals filed by the prosecutor and the victims.

The merits of the appeals centered on the way in which the Pre-Trial Chamber had considered factors under Rome Statute Article 53(1)(c), which counsels that “the Prosecutor shall consider whether … [t]aking 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” (see paragraphs 91 to 95 of the impugned decision). In its decision, the Pre-Trial Chamber concluded, after weighing a number of different factors, that pursuing an investigation would not positively contribute to or meet the objectives that victims sought in pursuing an ICC investigation.

Afghanistan’s Written Submissions

After Afghanistan requested that it be allowed to file written observations and participate in oral hearings despite missing the Nov. 15, 2019, cutoff deadline, the Appeals Chamber granted its request. Afghanistan’s principal argument in its written submission was that the Appeals Chamber need not overturn the impugned decision and authorize an investigation, because Afghanistan’s own national investigations are genuine and sufficient to protect both the interests of justice and the victims. Moreover, Afghanistan cited its own “complexity and volatility”—a phrase the Pre-Trial Chamber adopted—to justify its sole ability to perform a genuine investigation. The submission also noted that the prosecutor declined to visit Afghanistan in 2017 due to security concerns and has not visited the country since, suggesting that she is not well positioned to conduct an investigation.

Further, Afghanistan argued that the Pre-Trial Chamber has the power to consider all factors set out in Article 53(1)(c), including the interests of justice. For the court to play its supervisory role, Afghanistan contended that the court must have the flexibility to apply the “interests of justice” analysis to difficult cases. The submission also highlighted that the impugned decision is not immutable—it was circumstantial and does not prohibit the prosecutor from opening an investigation into Afghanistan in the future; both the Pre-Trial Chamber and the Rome Statute itself preserve the prosecutor’s right to seek authorization to open the same situation in the future. Finally, Afghanistan made an alternative suggestion that the Appeals Chamber remit the case back to the Pre-Trial Chamber for consideration in light of the additional submissions and the Appeals Chamber’s ruling.

Victims’ Standing to Bring an Appeal

The first issue the hearings addressed was whether victims had standing to bring an appeal under Rome Statute Article 82(1)(a). On June 24, 2019, some of the victims (known as Victims Group 1, or LRV1) submitted an appeal brief; other victims (Victims Groups 2 and 3, or LRV2 and LRV3) submitted their brief by corrigendum, an error to be corrected after initial publication, of Sept. 30; and the first victims submitted an updated appeal brief by corrigendum of Oct. 2. While these briefs covered a number of issues, both procedural and substantive, each set forth a number of arguments for why victims had standing to bring an appeal. One of the primary arguments concerned Article 15 of the Rome Statute on the prosecutor’s proprio motu power to initiate an investigation. The victims groups essentially argued that the Rome Statute would not highlight their role so specifically, in so many places, if they lacked standing to bring an appeal. These and other issues include:

Article 15 explicitly provides a role for victims to participate in the preliminary stage, without qualification.

Victims’ participatory role in the article 15 process implies their status as “parties” for the purposes of Article 82(1) of the Statute.

The prosecutor’s role in Article 15 proceedings does not foreclose victims’ standing.

Recognizing victims’ standing to appeal the impugned decision would not “unduly broaden” or subvert the appeals framework.

“Principles and rules of international law” and “internationally recognized human rights” favor recognition of victims’ standing to appeal a decision which denies an investigation into an entire situation.

The statute and Rules of Procedure and Evidence reflect the specific interest of victims in decisions concerning commencement or denial of an investigation.

The interests of victims are distinct from those of the prosecution, and as the victims groups argue, their right to independently appeal the decision should not depend on the prosecutor’s willingness to appeal.

The victims’ appeal raises issues with a different focus and perspective from the prosecutor’s motivation for appealing.

Victims’ appeals do not infringe on the rights of other parties.

In the Office of the Prosecutor’s (OTP’s) consolidated response to the victims’ appeals briefs, submitted on Oct. 22, the prosecutor argued that victims lack standing to bring appeals under Article 82(1). The OTP considered that the victims are participants but do not have standing to bring appeals because (a) the Rome Statute provides for the participatory rights of victims; (b) the prosecutor is the only party with authority to initiate a pre-investigation; and (c) expansion of standing to appeal, with no judicial control, is likely to impede the fair and expeditious conduct of proceedings.

On the first day of the hearings (see here for transcript and here for videos of the hearings), the victims’ legal representatives and amici argued why victims had standing. At the start of the second day of the hearings (see here for transcript), the Appeals Chamber issued an interlocutory decision from the bench. By a majority (but with Judge Luz del Carmen Ibanez Carranza dissenting both procedurally in deciding to issue an oral ruling on the matter and on the substance), the Appeals Chamber ruled that the victims’ appeals were inadmissible and, therefore, dismissed them. However, the court reasoned that the victims may participate through the prosecutor’s appeal—for instance, by making representations under Article 15(3) of the Rome Statute.

The majority decision centered on the idea that procedural context determines who qualifies as a “party” under Article 82(1) of the Rome Statute, as Article 82(1)(a) allows for “either party” to appeal “a decision with respect to jurisdiction of admissibility.” In this instance, the procedural framework falls under Article 15(4) of the Rome Statute in response to the prosecutor’s proprio motu request for an authorization of an investigation. Broadly speaking, Article 15 allows the prosecutor to initiate investigations of her own accord. Although under Article 15(3) victims may participate in the proceedings before the Trial Chamber, they lack the right to trigger proceedings under Article 15 because the Rome Statute vests that power solely in the prosecutor.

Speaking for the Appeals Chamber, Presiding Judge Piotr Hofmański stated, “There is no reason to assume that, while their participatory rights before the Pre-Trial Chamber amount to the making of representation before that Chamber, their [the victims’] rights are amplified to that of a potential appellant once the Pre-Trial Chamber has issued a decision on the Prosecutor’s request.” Moreover, the Appeals Chamber did not consider that human rights law mandated a different disposition. Because the victims failed to qualify as parties under Article 82(1)(a) of the Rome Statute, the Appeals Chamber concluded that they lacked standing to directly appeal the impugned decision.

Whether the Impugned Decision Is a “Decision With Respect to Jurisdiction”

The second issue the hearings addressed was whether the impugned decision is one that may be considered a “decision with respect to jurisdiction” within the meaning of Article 82(1)(a) of the Rome Statute, which allows for appeal of decisions with respect to jurisdiction or admissibility. If the impugned decision is a decision with respect to jurisdiction, it is appealable. Again, the victims, the Office of the Prosecutor, and the amici curiae’s submissions covered this issue, and the victims' representatives and prosecutor addressed the issue on the first day of the hearings.

Both the victims and the OTP pointed to the court’s previous jurisprudence, especially the Comoros admissibility appeal decision, to find the test for whether the impugned decision is a decision with respect to jurisdiction. This test considers whether the operative part of the impugned decision is a ruling on jurisdiction or admissibility, as “[i]t is the nature, and not the ultimate effect or implication of a decision, that determines whether an appeal falls under article 82(1)(a).” In the Comoros admissibility appeal decision, the court ultimately determined that the impugned decision in that case was not one “with respect to ... admissibility” under Article 82(1)(A), and so the prosecutor’s appeal was inadmissible and dismissed.

In its response to the appeals briefs of the victims, the OTP submitted that the decision does not appear to be a ruling on jurisdiction in the manner previously required by the Appeals Chamber under Article 82(1)(a). The OTP contended that the Afghanistan situation is within the court’s jurisdiction, because the Pre-Trial Chamber did not consider the investigation would be in the interests of justice. Though the Pre-Trial Chamber decision does prevent the immediate opening of an investigation, the OTP argued, “[N]othing in it definitively precludes any material allegation arising from the situation being brought before the Court, as a matter of law.” The OTP further cited judicial economy and procedural fairness as grounds favoring consistent interpretation of Article 82(1)(a).

LRV1 and LRV2 set out slightly different analyses on why the impugned decision is a “decision with respect to jurisdiction.” Applying the test outlined above, LRV1 purported that the “nature of the Decision pertains directly to the Court’s ability to exercise jurisdiction where the requirements of admissibility and temporal, territorial, subject matter and personal jurisdiction are met.” LRV1 further asserted that the operative part of the decision did not have to specifically reference “jurisdiction” or “admissibility” for it to qualify as a decision on jurisdiction or admissibility. As the impugned decision “deprives the Court of its mandate to exercise jurisdiction in Afghanistan,” LRV1 concluded that the impugned decision is one with respect to jurisdiction.

LRV2 also contended that the impugned decision is one with respect to jurisdiction; while it applied the same test discussed above, it instead outlined the principles the court provided in its Kenya admissibility decision. In that case, the court considered “whether a request for cooperation bootstrapped to a separate Article 19(6) challenge” is appealable as a “decision with respect to admissibility” under Article 82(1)(a). Arguing that the test is met that the impugned decision is jurisdictional in nature, LRV2 noted that the decision concerns the exercise of jurisdiction under Article 13, and that the decision concerns questions of jurisdiction under Articles 5 and 12.

Ultimately, on the second day of the hearings and immediately following its interlocutory decision on victim standing, the Appeals Chamber decided that there was no need to determine whether the Pre-Trial Chamber’s decision not to authorize an investigation is a decision with respect to jurisdiction or admissibility under Rome Statute Article 82(1)(a). The Appeals Chamber, however, remains in consideration of the prosecutor’s appeal and of the victims’ briefings.

Merits of the Appeal

The Appeals Chamber divided the third issue, the merits of the appeals, into three questions:

(a) “When the Prosecutor requests authorisation to initiate an investigation having considered article 53(1)(c) of the Statute, does the Pre-Trial chamber have the power to consider the factors under article 53(1)(c) of the Statute itself?”

In other words, when the prosecutor makes a determination that an investigation would be in the interests of justice under Article 53(1)(c) of the Rome Statute, can the Pre-Trial Chamber second guess that decision? The text of Article 53(1)(c) permits the prosecutor to consider “[t]aking into account the gravity of the crime and the interests of victims, [whether] there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice”—but the article does not mention the Pre-Trial Chamber.

(b) “Are the factors considered by Pre-Trial Chamber II at paragraphs 91 to 95 of the Impugned Decision when determining that the authorization of an investigation would not be in the interests of justice appropriate factors for such a determination?”

In other words, did the Pre-Trial Chamber consider the correct factors—including the amount of time between the alleged crimes and the investigation, the ability to gather evidence, and the lack of cooperation from some countries—when analyzing the interests of justice?

(c) “In deciding whether to authorize an investigation, may a Pre-Trial Chamber limit the scope of the investigation to incidents specifically mentioned in the prosecutor’s request and authorized by the chamber?”

In other words, does the Pre-Trial Chamber have the power to limit the scope of an investigation to just those incidents the prosecutor initially presents? This question is significant because a request for authorization comes in the early part of a case and the prosecutor may uncover new facts, new evidence and potential new crimes as the investigation proceeds. However, as it stands, the Pre-Trial Chamber’s decision would limit any investigation into Afghanistan to only those incidents the prosecutor specifically mentioned, a precedent that could potentially limit the scope of future investigations—even those outside of the Afghanistan context.

Issue A—Whether the Pre-Trial Chamber Has the Authority to Consider the Interests of Justice

The victims groups both advanced similar rationales for arguing that the Pre-Trial Chamber overstepped its authority by conducting an interests of justice analysis instead of deferring to the prosecutor’s determination on that issue. According to the LRV1 appeal brief, Article 53(3) of the Rome Statute “enables a Pre-Trial Chamber only to review a decision of the Prosecution not to proceed with an investigation where the Prosecution determines that there are ‘substantial reasons to believe that an investigation would not serve the interests of justice’” (emphasis in the original). Because in this instance the prosecutor decided to proceed with the investigation, Article 53(3) would not permit review of a decision to proceed. The victims also argued that procedural fairness required the Pre-Trial Chamber to permit the prosecutor and them to provide specific submissions on the question given the “the unprecedented nature of the Chamber’s interpretation of its judicial review function, and the devastating effect of the Decision on the victims’ right to a prompt and thorough investigation.” Echoing these arguments, the LRV2 brief added that the Pre-Trial Chamber should have used an abuse of discretion standard of review instead of considering the prosecutor’s determination de novo.

The prosecutor took a slightly different approach in her consolidated response, conceding that the Pre-Trial Chamber might have a role in determining whether it agreed with the prosecutor’s interests of justice determination so long as it did so with a narrow scope. In particular, according to the prosecutor, the Pre-Trial Chamber must confine its analysis to two matters: whether it agrees with the prosecutor that (a) no specific circumstance exists to raise concern that opening an investigation would not serve the interests of justice or (b) how such a factor is weighed against other relevant factors such as the gravity of the identified crimes and the interests of the victims. The prosecutor then argued “the Pre-Trial Chamber should have been guided primarily by the representations of victims in determining whether it concurs with the Prosecutor’s determination that there is no substantial reason to believe the requested investigation would not serve the interests of justice.”

Issue B—Whether the Pre-Trial Chamber Considered the Correct Factors for Interests of Justice

The prosecutor and victims groups largely agreed that the Pre-Trial Chamber erred in considering the prospects for state cooperation, the time elapsed between the time of the identified crimes and the request, and the prospects for securing relevant evidence and suspects. LRV1 pointed out that the Pre-Trial Chamber’s decision failed to indicate any specific instances of state noncooperation but instead rested on an untested assumption that certain states might not comply with their obligations based on past acts of obstruction. Both the prosecutor and victims groups agreed that states had legal obligations to cooperate with the court under the Rome Statute, and LRV1 noted that a lack of cooperation could culminate in referral to the Assembly of States Parties or the U.N. Security Council under Article 87(7) of the Rome Statute.

Regarding feasibility of the Investigation, LRV1 observed that feasibility is not a factor mentioned anywhere in the Rome Statute and that relevant evidence has already been collected and preserved with victims and witnesses available to testify. In addition, LRV1 provided examples of other international criminal tribunals, such as the Extraordinary Chambers in the Court of Cambodia, which had jurisdiction over and successfully examined crimes that occurred decades ago. The prosecutor likewise agreed that the Pre-Trial Chamber was “unreasonable” in its “misapprehension” about the amount of time that has passed since the crimes took place and argued that the chamber “failed to give sufficient weight to the gravity of the crimes and the interests of the victims.” Finally, the prosecutor and victims groups argued that the prosecutor, not the Pre-Trial Chamber, had “exclusive competence” to assess her own resources and determine whether an investigation was feasible.

Issue C—Whether the Pre-Trial Chamber May Limit the Scope of an Investigation to Those Incidents the Prosecutor Identifies

The prosecutor and the victims groups agreed that the Pre-Trial Chamber committed a legal error when it limited the scope of any potential investigation to “those incidents for which the judicial authorisation is explicitly sought in the [Prosecutor’s] Request” (see paragraph 68 of the impugned decision).

LRV2 provided three reasons why the Pre-Trial Chamber erred: (a) The decision departed from previous rulings permitting the prosecutor’s investigation to include crimes that are sufficiently linked to that expressly defined scope (and imposed a new narrower test of whether crimes have a close link to authorized scope); (b) the decision rejected the idea that the prosecutor may investigate crimes that occur after the investigation commences; and (c) the decision switched the scope of the investigation from a generally defined category of crimes to the specific incidents (and identified alleged offenders) identified in the prosecutor’s request. The prosecutor largely agreed with this stance, arguing in her response brief that “the scope of an investigation is delimited by suitable geographic, temporal, and other material parameters, which are reasonably derived from the circumstances suggested by the available information.” The prosecutor also emphasized LRV2’s broader point that limiting the scope of an investigation by excluding crimes that occur after it commences would undermine deterrence and punishment of future crimes—one of the court’s fundamental objectives. Finally, the prosecutor argued that the Pre-Trial Chamber erred in its assessment of the interests of justice—emphasizing, as did LRV1 and LRV2, that the Pre-Trial Chamber did not give sufficient weight to either the gravity of the identified crimes or the interests of the victims. She noted, moreover, that the allocation of her resources is a matter for her exclusive assessment and determination.

On the second day of the hearings (see here for transcript), the Appeals Chamber did not reach any substantive decisions on the merits of the appeals. However, the bench had a number of questions for the participants. In particular, Judge Ibanez Carranza asked Jay Sekulow, participating in the hearing as an amicus on behalf of the European Center for Law and Justice, about the United States’s obligations to investigate and prosecute instances of torture. (Sekulow is also President Trump’s personal lawyer.) Sekulow replied:

[T]he United States has a very comprehensive military justice system and a very comprehensive criminal justice system, and these cases that do arise from time to time[] .... I'm not saying that the United States or any other country is immune from something not going as planned or for something to take place that would be a violation of international law, but I'm not willing to concede that the only way to handle that would be for jurisdiction of this Court for a non-party State, which is in the situation of the United States.

Ibanez Carranza also asked representatives of the Afghan government how the state could investigate and prosecute the crimes at issue given the fragile security situation and attacks on judges, prosecutors and police. The government’s representatives noted that some successful prosecutions have occurred, that the prosecutor would face similar security concerns, and that the principle of complementarity favored assisting and strengthening national judicial systems. On the third day of the hearings (see here for transcript), the Appeals Chamber continued hearing presentations from amici, the three victims groups and the prosecutor but did not make any decisions on the merits or ask questions from the bench.

Additional Considerations

The deliberations before the Appeals Chamber come on the heels of a contentious few months between the Trump administration and the court. In April 2019, the United States revoked the ICC prosecutor’s visa over the potential investigation into Afghanistan.

The U.S. has viewed the ICC with ambivalence or hostility since it began operations in 2002. Both the Bush and Obama administrations have argued that the ICC either cannot—as a matter of law—or should not—as a matter of policy—exercise jurisdiction over non-member-state nationals.

However, the hostility and rhetoric has increased in recent months under the Trump administration and then-National Security Adviser John Bolton. In September 2018, Bolton stated the ICC would face “consequences,” including travel restrictions and potential economic sanctions, if the investigation advanced. In his speech, Bolton explained that the ICC “unacceptably threatens American sovereignty and U.S. national security interests,” because the prosecutor “claims essentially unfettered discretion to investigate, charge, and prosecute individuals, regardless of whether their countries have acceded to the Rome Statute.” Moreover, Bolton argued the ICC is unnecessary because the “domestic U.S. judicial systems already hold American citizens to the highest legal and ethical standards,” and “[w]hen violations of law do occur, the United States takes appropriate and swift action to hold perpetrators accountable.” Finally, he asserted that the ICC claims jurisdiction over crimes with disputed and ambiguous definitions, fails to deter and punish grave crimes, and has faced criticism from more than 70 nations that have refused to join it.

Now that Bolton has left the U.S. government, the Trump administration’s position toward the ICC is less clear. On the one hand, if the Appeals Chamber decides to overturn the Pre-Trial Chamber and allows an investigation of U.S. troops to move forward, the U.S. may take an aggressive stance as it did last April when it revoked the prosecutor’s visa. On the other hand, a decision upholding the Pre-Trial Chamber’s ruling might avoid such a direct confrontation. One factor to watch will be how closely, if at all, the Appeals Chamber considers these political dynamics when making its decision.

The U.S. might not be the only country under the microscope in the coming months for alleged crimes committed in Afghanistan. Following a BBC Panorama program about alleged U.K. war crimes in Iraq and Afghanistan, the ICC said it would “independently assess” the documentary’s findings, which could be “highly relevant” to their decision about whether or not to open an investigation into the U.K. With the U.S. and the U.K. routinely acting in coalition, any decisions each country makes will receive close attention from the other and may have a future impact on their abilities to interface operationally, strategically or tactically.