By Anushka Sehmi
On April 12, 2019, Pre-Trial Chamber II[1] of the International Criminal Court (“ICC” or “Court”) rejected a request by Prosecutor Fatou Bensouda to open an investigation into alleged war crimes and crimes against humanity committed in Afghanistan since May 1, 2003 (“Impugned Decision” or disputed decision). The Impugned Decision was met with overwhelming criticism, including from victims of the conflict, civil society and academia. Members of Afghan civil society characterised the decision as “being motivated by political elements” and asked the ICC not to “ignore the rights of the victims of Afghanistan for political reasons.” The Legal Counsel of the African Union (“AU”) also questioned why the Court would consider ‘the political implications in proceeding with the case of Afghanistan and not to cases in Africa?’ Arguably the involvement of the US and its on-going ‘war on terror’ launched following the September 11, 2001 attack adds a significant layer of complexity. In March, this year, the US secretary of state, Mike Pompeo, said Washington would revoke or deny visas to ICC staff seeking to investigate alleged war crimes and other abuses committed by US forces in Afghanistan or elsewhere. The ICC Prosecutor said on 5 April that her US visa had been revoked.
While the Impugned Decision did acknowledge that international crimes have been committed in Afghanistan, it concluded that an investigation “would not serve the interests of justice,” sparking intense debate and a flurry of submissions and appeals from the Prosecutor, Legal Representatives for Victims (“LRVs”), (see here, here and here) and amici curiae on whether PTC II[2] was authorized to review a decision of the Prosecutor to proceed with an investigation using the ‘interests of justice’ criteria.
While agreeing with the Prosecutor that there was reasonable basis to believe that crimes within the ICC’s jurisdiction had been committed; and these crimes were of sufficient gravity to warrant an investigation; and the interests of victims favoured an investigation; the Impugned Decision took into account a number of factors including: the lengthy period which the preliminary examination had taken, state cooperation, the availability of evidence and surrender of potential suspects, and budgetary considerations, to argue that an investigation was not in ‘the interests of justice.’ Two amici curiae (or “friends of the court”) submissions were submitted by Afghanistan Human Rights Organisations and FIDH, Armanshahr and the TJCG before Pre-Trial Chamber II, both of which supported an appeal of the Impugned Decision. Under Rule 103(1) of the ICC Rules of Procedure and Evidence (“RPE”), “[A]t any stage of the proceedings, a Chamber may, if it considers it desirable for the proper determination of the case, invite or grant leave to a State, organisation or person to submit, in writing or orally, any observation on any issue the Chamber deems appropriate.”
On September 17, 2019, the Pre-Trial Chamber granted, in part, the Prosecutor’s request for leave to appeal the Impugned Decision. Following this the ICC Appeals Chamber issued an order in which a session was scheduled from December 4 to 6, 2019 to hear oral arguments on the issues arising from all the appeals. Furthermore, the Appeals Chamber invited amici curiae either to file written submissions, or to indicate that they will attend the oral hearing to be held between December 4 and 6, 2019 instead. In total 15 amici curiae requests were filed before the Appeals Chamber, seven amici opted to appear directly before the judges during the oral hearing, while the remaining eight filed written submissions on November 15, 2019. The unprecedented number of amici observations now before the Appeals Chamber are testament to the detour the Impugned Decision took from the established jurisprudence of the Court relating to the authorisation of investigations under article 15(3).
The overwhelming majority of the amici support the Prosecution and LRV Appeal Briefs, and argue that the Appeals Chamber should reverse the Impugned Decision and authorise an investigation in Afghanistan. Among those appearing in Court will be Professor Hannah R. Garry, speaking on behalf of former UN Special Rapporteurs, Professor Pablo De Greiff, Professor Juan E. Méndez and Professor Manfred Nowak. Highlighting the jus cogens nature of the prohibition of torture, and taking into account the rights to an effective remedy, reparation and truth for victims, the former UN Special Rapporteurs argue that the Chamber made an error in failing to authorise the Prosecutor’s request to commence investigations in Afghanistan. Former international prosecutors Benjamin B. Ferencz, Stephen J. Rapp, Richard J. Goldstone, David M. Crane and Carla Del Ponte submitted written submissions and argue that PTC II encroached unreasonably on prosecutorial discretion and negatively affected the Prosecution’s ability to fulfil its mandate when it decided to undertake a review of ‘the interests of justice’.[3] Furthermore, they also argue that should it be allowed to stand, the Impugned Decision could potentially affect the ICC’s deterrence function.[4] However, Jay Alan Sekulow, — best known as one of President Donald Trump’s lawyers, who will be presenting oral submissions argues that a ‘more cautionary perspective on extending the Court’s jurisdiction’ is warranted ‘in light of increasing pushback from non-consenting, non-party States to the Rome Statute as well as the fact that non-cooperation by States concerned in a situation may result in the ICC’s expending limited resources that could be better used elsewhere.’ Kai Ambos and Alexander Heinze argue that the Impugned Decision could ultimately undermine the legitimacy of the Court and ‘is likely to vindicate the criticism of many African states that have accused the ICC of being neo-colonialist or even racist — an observation that is confirmed by recent expressions of satisfaction for the Pre-Trial Chamber’s decision from the US administration.’[5]
The question of whether victims should have standing to appeal a decision pursuant to article 15(3) has proved controversial, pitting the Prosecutor against the LRVs. The Prosecutor argues that granting victims the right of appeal ‘would open the door to a significantly more cumbersome judicial process’[6] and that meaningful participation for victims cannot equate to ‘the need for victims to have procedural rights as a “party” to the litigation.’[7]’A handful of the amici have weighed in on this issue. Wayne Jordash, QC, on behalf of the Global Rights Compliance will submit oral arguments on this matter. Amnesty International and the Queen’s University Belfast Human Rights Centre both addressed the question of victims’ standing to appeal in their written submissions, along with FIDH et al.[8] Amnesty International support a right of appeal for victims, stating that ‘[I]f the ICC is to be just, fair and effective it must ensure that rights holders are able to realise their rights in the Statute…’[9] Similarly, Luke Moffet, on behalf of the Queen’s University Belfast Human Rights Centre, argues that although victims do not have a stand-alone right to appeal, the commencement of the proceedings are a unique period and that it ‘may be worthwhile to incorporate a right to request a review where a decision has been made to not prosecute or to commence an investigation.’[10] FIDH et al argue victims should be allowed appeal in exceptional circumstances and a decision failing to authorise an investigation is one such circumstance. They further argue that ‘the Appeals Chamber must adopt a “living instrument” approach to the Rome Statute, whereby its general provisions must be capable of evolving with broader developments in human rights law.’[11] The need to align the participatory rights of victims at the ICC with the general provisions of human rights law is also highlighted by Kate Mackintosh and Göran Sluiter. They argue that the victims’ right to an investigation is included in all major relevant human rights instruments and the Impugned Decision ‘significantly impacts the rights of individuals to have the serious human rights abuses that they have suffered effectively investigated.’ [12]
The Appeals Chamber will therefore be responsible for ruling on two issues of fundamental importance to the future of the Court. First, it will have to decide whether PTC II overstepped its mandate by undertaking a review of ‘the interests of justice’; and whether an arguably incorrect interpretation of ‘the interests of justice’ will be allowed to stand, further bolstering views of a Court which administers selective justice. Secondly, it will have to decide whether victims will be allowed to appeal a decision concerned with the commencement of an investigation; or whether meaningful victim participation at the ICC will remain lofty rhetoric; used as a means of self-legitimation for the Court; rather than providing victims with real and tangible rights.
Anushka Sehmi is a Kenyan lawyer currently assisting in representing victims in the case of the Prosecutor v. Dominic Ongwen at the International Criminal Court (ICC). She drafted amicus curiae submissions on behalf of FIDH, Armanshahr and the TJCG before Pre-Trial Chamber II, and assisted nine NGOs, including FIDH, to make amicus curiae submissions before the Appeals Chamber of the ICC in the Afghanistan situation.
[1]Composed of Judges Antoine Kesia-Mbe Mindua, Judge Tomoko Akane and Judge Rosario Salvatore Aitala.
[2] See article 53(2)(c) of the Rome Statute.
[3]Para.8, ICC-02/17-113.
[4]Para.15, ICC-02/17-113.
[5]Para. 6, ICC-02/17-108.
[6]ICC-02/17-92, para. 29.
[7]ICC-02/17-92, para. 31.
[8]Nine NGOs including Armanshahr/OPEN ASIA, International Federation for Human Rights (“FIDH”), Afghanistan-Transitional Justice Coordination Group (“TJCG”), European Center for Constitutional and Human Rights (“ECCHR”), Human Rights Watch (“HRW”), No Peace Without Justice (“NPWJ”), The Center for Justice & Accountability (“CJA”), REDRESS, Women’s Initiatives for Gender Justice submitted amicus curiae submissions.
[9]Para.16, ICC-02/17-112.
[10]Para.19, ICC-02/17-115.
[11]Para 9, ICC-02/17-114.
[12]Para.14, ICC-02/17-117.
