The Appeals Chamber of the International Criminal Court (ICC) on Thursday unanimously approved an investigation into allegations of war crimes committed on both sides of the Afghanistan conflict. The investigation will focus on “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.”
The Pre-Trial Chamber had rejected a request to open an investigation last year, finding that “notwithstanding the fact that all the relevant requirements are met as regards both jurisdiction and admissibility, an investigation into the situation in Afghanistan would not serve the interests of justice.” In their decision, the Pre-Trial Chamber cited concerns “including in relation to the gravity of the alleged conducts, the potential victims’ interests and the likelihood that investigation be feasible and meaningful under the relevant circumstances.”
The prosecutor appealed based on Article 15 of the Rome Statute, which provides that when a prosecutor provides a “reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation” and then the “Pre-Trial Chamber, upon examination of the request and the supporting material, considers (if) there is a reasonable basis to proceed with an investigation.” However, a decision by the Pre-Trial Chamber to preclude an investigation will not preclude the prosecutor from appealing the case to the Appeals Chambers.
The appeal attempts to resolve the apparent disparity between Article 15(4), permitting the investigation, and Article 53(c), which allows the court discretion in the interest of justice. The Appeals Chamber’s decision Thursday overturned the Pre-Trial Chamber’s ruling on the grounds that the determination that the investigation “would not serve the interests of justice” and was an abuse of discretion.
The case also names three primary parties as the focus of its investigation. The “Taliban and affiliated groups for crimes against humanity and war crimes; (ii) the Afghan National Security Forces for war crimes; and (iii) the armed forces of the United States of America (the ‘United States’) and its Central Intelligence Agency (the ‘CIA’) for war crimes.” There are a number of specific allegations for each of these parties.
The ruling Thursday was not on the validity or jurisdictional accuracy of those specific allegations, only that the prosecutor should be permitted to continue with the investigation unimpeded. However, the US is not a party to the Rome Statute and therefore does not recognize the ICC’s authority over its citizens.
