Victims’ attempt to ‘save’ Afghan investigation leads to conundrum

By Thomas Verfuss in The Hague

The decision of a pre-trial chamber of the International Criminal Court (ICC) not to authorize the prosecutor to pursue a formal investigation in Afghanistan into alleged war crimes and crimes against humanity committed by combatants including those from the United States and its allies has raised many eyebrows since it was published in April.

The finding has been questioned because of the gravity of the crimes allegedly committed by the Taliban rebels, by the government of the Central-Asian country, and by American and British troops and their intelligence services, both in Afghanistan and in black sites in Eastern Europe where “terror suspects” were held.

The decision has also brought to the fore the reason why the court was set up: What is the ICC there for in the first place if judges won’t even allow the prosecutor to try and investigate and prosecute if states are unwilling to do so?

Finally, the decision left those who disagree with the court on the remedies available to them when they are at variance with the court.

The ruling by the pre-trial chamber follows a 2017 formal request by ICC prosecutor Fatou Bensouda who had outlined possible crimes committed since 2003 by the United States armed forces, the Central Intelligence Agency, the Afghan National Security Forces, the Taliban and the militant Haqqani network.

The fathers and mothers of the Rome Statute system thought of situations where judges might refuse to authorize the opening of an investigation because of lack of jurisdiction or admissibility. Such a decision can be appealed, the texts are clear.

But in this case the pre-trial judges said they were satisfied the requirements of jurisdiction and admissibility were met. They said they still did not authorize the investigation “in the interests of justice”. This argument has never been used before. As the victims have been clamoring for an investigation in large numbers, many fail to understand why granting them the satisfaction of at least seeing the Prosecutor try to obtain justice would be contrary to the interests of justice.

But there is also the procedural headache on the denial “in the interests of justice”: as such a course of events had not been foreseen by the drafters of the basic texts of the system; victims argue that such a test is beyond the powers of the pre-trial chamber judges in this situation. It is not clear by which mechanism the decision might be appealed. This question has led to lots of debate among ICC experts since April: academics argue about which article of the Rome Statute should be used.

The matter has generated five key filings between June 7 and June 12: First, the prosecutor asked for leave to appeal the decision not to grant the authorization to open an investigation. That is not the appeal itself – just a request to the pre-trial chamber judges for permission to put the matter before the Appeals Chamber judges.

Then, in three different filings, various legal representatives of different groups of victims made submissions to both the pre-trial chamber and the appeals chamber, either seeking leave to appeal or starting to make submissions on the appeal itself, a so-called notice of appeal.

On top of that, on June 12, the Prosecutor made “observations” to both pre-trial chamber and Appeals Chamber on the victims’ submissions. She expressed understanding for the victims’ concerns. But as a matter of procedure, Bensouda submits that the victims have no right to appeal, because they are not a fully-fledged party to the proceedings, but just a “participant” – an old debate in ICC quarters, where for the first time in the history of contemporaneous international criminal courts and tribunals, victims are not only “used” to obtain a conviction, but have a right to their own voice, a right to be legally represented by counsel to put forward their concerns before the judges. But that does not mean victims have the same “standing” to make requests and filings as parties like prosecutor and defense.

Confronted with the confusing picture of the recent filings, with not only requests for leave to appeal and notices of appeal, but also an NGO offer to help the court with advice as “amicus curiae” (friend of the court) and submissions on behalf of the Office of Public Counsel for Victims (OPCV), an auxiliary organ loosely attached to the Registry, the Prosecutor notes: “The diverging approaches and requests of the Five NGOs, the interveners, and the OPCV have created an anomalous situation in the procedure of the Court, by ostensibly triggering concurrent—and potentially incompatible—proceedings on a matter which is already sub judice.”

Bensouda asks the judges not to formally recognize the victims as parties to the proceedings, but listen to what they have to say on the merits – and decide on her own appeal “expeditiously”.

Legal representatives of the victims Fergal Gaynor (Ireland) and Nada Kiswanson van Hooydonk (Palestine) recall in their submission whom they represent: “A total of 699 representation forms were transmitted to Pre-Trial Chamber III on behalf of 6,220 individuals, 1,690 families, several millions of victims including 26 villages and one institution.” Gaynor and Kiswanson explicitly support the Prosecutor’s request for leave to appeal.

The victims’ representatives point out the ambiguity of the Rome Statute system as to who is a party to the proceedings at this stage and ask for a generous interpretation: “The Statute does not define ‘party’. Nor do the Elements of Crimes, the Rules, or the Regulations. The Victims submit that the term should, in the present exceptional circumstances, where an entire investigation has been denied notwithstanding affirmative findings on jurisdiction and admissibility, be interpreted to include victims.”

The victims representatives recall that states like Jordan and Côte d’Ivoire have been allowed to file appeals, though they are not explicitly recognized as parties, like prosecution and defense: “Just as States have interests which should be respected in exceptional circumstances by providing an avenue to appeal under Article 82(1), even when that provision does not expressly so provide, victims should also be permitted to appeal a decision that goes to the core of their interests. That is the case here. The Decision pertains directly to jurisdiction and resulted in the denial of authorisation of an entire investigation that negatively affects the prospect of justice for millions of victims.”

“In addition, at issue are the Victims’ rights to truth, justice, and to reparation. The decision represents a concrete, actual threat to the Victims’ interests: without active investigation by the Prosecution, there can be no trials at the Court and those responsible for the crimes will be not be held accountable.”