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America under the scanner

The ICC Appeals Chamber’s decision to permit an investigation into war crimes in Afghanistan could trigger fresh tensions between the United States and the Court, say Joyeeta Banerjee & Rajdeep Banerjee.

Joyeeta Banerjee and Rajdeep Banerjee | New Delhi |

The Appeals Chamber of the International Criminal Court (ICC) on March 5 allowed the ICC Prosecutor to pursue an investigation into alleged war crimes including U.S. war crimes in Afghanistan. U.S. has never joined the ICC and it has always been critical of the ICC and has vociferously opposed any investigation of its Afghanistan operations.

This investigation will include alleged crimes committed on the territory of Afghanistan since 1 May 2003, as well as other alleged crimes that have a nexus to the armed conflict in Afghanistan but committed on the territory of other State Parties. In 2017 the ICC Prosecutor had requested authorisation from Pre-Trial Judges to initiate an investigation into alleged war crimes and crimes against humanity in relation to the armed conflict in Afghanistan since 1 May 2003.

Afghanistan had deposited its instrument of accession to the ICC Statute on 10 February 2003. Thus, ICC can exercise its jurisdiction over crimes committed on the territory of Afghanistan or by its nationals from 1 May 2003 onwards. The request involved three aspects: the Taliban and related groups for crimes against humanity and war crimes; the Afghan National Security Forces for war crimes; and the armed forces of the United States of America and its Central Intelligence Agency for war crimes. The International Criminal Court can exercise its jurisdiction with respect to a crime in three ways. The first one is a referral by the Security Council acting under Chapter VII of the Charter of the United Nations of a situation in which one or more of such crimes appears to have been committed.

The second route is when a situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party. The third route is when the Prosecutor may initiate investigations propio motu (on her own motion) on the basis of information on crimes within the jurisdiction of the Court. The Prosecutor when initiating investigations propio motu has to analyse the seriousness of the information received. She can seek additional information from States, organs of the United Nations, intergovernmental or nongovernmental organizations, or other reliable sources that she deems appropriate.

If the Prosecutor then comes to a conclusion that there is a reasonable basis to proceed with an investigation, she has to submit to the Pre-Trial Chamber a request for authorisation of an investigation. The Pre-Trial Chamber authorizes the commencement of the investigation, if upon examination of the request and the supporting material, it considers that there is a reasonable basis to proceed with an investigation and further the case appears to fall within the jurisdiction of the Court. In this case, the Prosecutor wanted to initiate an investigation propio motu, without having received a referral from a State Party to the Rome Statute or the Security Council. As per the requirement, the investigation had to be authorised by a Pre-Trial Chamber.

But here the Prosecutor’s request for authorisation was rejected on the ground that an investigation would not serve the interests of justice. The Pre-Trial Chamber utilising its earlier precedents had held that the requirements set out in article 53(1)(a) to (c) are also to be additionally met. Article 53 of the Rome Statute deals with initiation of an investigation. It states that the Prosecutor shall, having evaluated the information made available to her, initiate an investigation unless she determines that there is no reasonable basis to proceed under the Statute. In deciding whether to initiate an investigation, the Prosecutor has to consider whether the information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed; the case is or would be admissible; and taking 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.

The Pre-Trial Chamber thus held that it was required not only to determine that ‘there is a reasonable basis to believe that crimes under the Court’s jurisdiction have been committed’, but also to additionally determine ‘that investigations would be in the interests of justice’. The Prosecutor had alleged that the seriousness and extent of war crimes and crimes against humanity and the wide range of perpetrators among all the parties to the conflict along with the limited prospects for accountability at the national level favoured an investigation. But the PreTrial Chamber had observed that the preliminary examination in the situation in Afghanistan was unusually long as eleven years elapsed between the start of the preliminary examination and the filing of the Request.

The Chamber reasoned that most of the incidents occurred long time back and the prosecution was not in a position to meaningfully act for the purposes of preserving evidence, or for the protection of witnesses. The Pre-Trial Chamber observed that notwithstanding the fact all the relevant requirements were met as regards both jurisdiction and admissibility, the prospects for a successful investigation and prosecution was very less. It also reasoned that pursuing the investigation would require more resources which can put additional burden on the Court. The Pre-Trial Chamber had also refused to the extend the scope of international humanitarian law beyond the territory of Afghanistan reasoning that the alleged war crimes whose victims were captured outside Afghanistan fell out of the Court’s jurisdiction due to the lack of the nexus with an internal armed conflict which was held to be compulsory for triggering the application of international humanitarian law and the Court’s jurisdiction.

The Appeals Chamber has now observed that in all earlier decisions (including the first decision in Situation in the Republic of Kenya (2010)) the Pre-Trial Chamber have considered all the factors set out in article 53(1) including the Prosecutor’s interests of justice assessment under article 53(1)(c). Dwelling on the scope of article 53, the Appeals Chamber observed that if a situation is referred by a State Party or the Security Council, article 53(1) places an obligation on the Prosecutor to open an investigation. The Prosecutor is obliged to evaluate the seriousness of the information received and may seek additional information. In deciding whether to initiate an investigation, article 53(1) obliges the Prosecutor to consider three factors: (i) whether there is a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed; (ii) whether the case is or would be admissible; and (iii) whether, taking 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.

The Appeals Chamber further observed that the discretionary nature of the power accorded to the Prosecutor under article 15 of the Statute is supported by the fact that a proposal for judicial review of decisions of the Prosecutor not to request authorisation of an investigation under article 15(6) of the Statute was rejected by the drafters. The Appeals Chamber held that the content and placement of articles 15 and 53(1) of the Statute make it clear that these are separate provisions addressing the initiation of an investigation by the Prosecutor in two distinct contexts. Article 15 of the Statute governs the initiation of a propio motu investigation, while article 53(1) concerns situations which are referred to the Prosecutor by a State Party or the Security Council. It thus held that the ‘interests of justice’ factor set out in article 53(1)(c) of the Statute is not part of the pre-trial chamber’s decision under article 15(4).

Regarding the submission of Afghanistan that there was no need to authorise an investigation as domestic investigations were now being undertaken under its new laws and new criminal justice bodies and mechanisms put in place precisely to investigate the same crimes that could come before the ICC, the Appeals Chamber disagreed with Afghanistan. It held that Afghanistan could instead request deferral of the Prosecutor’s investigation. Regarding agreements entered into between the United States and Afghanistan which could have a bearing on the jurisdiction of the Court, the Appeals Chamber observed that the effect of the agreements was not a matter for consideration in relation to the authorisation of an investigation under the present statutory scheme. On the culpability of acts committed outside Afghanistan if the victims of the acts were captured outside Afghanistan, the Prosecutor had provided information relating to alleged war crimes amounting to serious violations of Article 3 common to the four Geneva Conventions of torture and cruel treatment, outrages upon personal dignity, and rape and other forms of sexual violence, committed as part of a policy, by members of the CIA in a number of detention facilities in Afghanistan, as well as in detention facilities located on the territory of other States Parties.

The Appeals Chamber observed that the nexus requirement for war crimes is satisfied as the penultimate element of each of the war crimes under the Court’s jurisdiction required that the conduct took place in the context of and was associated with an international armed conflict or with an armed conflict not of an international character. The Appeals Chamber reasoned that the function of the nexus requirement is primarily to differentiate war crimes from ordinary crimes under domestic law, such as the common crime of murder and rape. The Appeals Chamber of the ICTY in the Kunarac case (Prosecutor v. Dragoljub Kunarac et al.(2002)) had observed that if it can be established that the perpetrator acted in furtherance of or under the guise of the armed conflict, it would be sufficient to conclude that his acts were closely related to the armed conflict.

Whether the crime in question is sufficiently related to the armed conflict, the Court can take into account various factors like the fact that the perpetrator is a combatant; that the victim is a non-combatant; that the victim is a member of the opposing party; that the act may be said to serve the ultimate goal of a military campaign; and that the crime is committed as part of or in the context of the perpetrator’s official duties. Referring to the chapeau of Common Article 3 of the Geneva Conventions the Appeals Chamber disagreed with the Pre-Trial Chamber’s construction namely to limit the applicability of the provision to the State on the territory of which the armed conflict occurs. The Appeals Chamber held that the text of Common Article 3 read in its totality does not suggest that the requisite nexus with the armed conflict in Afghanistan cannot exist if the criminal conduct occurred outside Afghanistan and the victim was not captured in Afghanistan.

The Appeals Chamber thus held that merely because the alleged capture of the victim did not take place in Afghanistan and the alleged criminal act also occurred outside Afghanistan, it cannot be said that the conduct cannot possibly have taken place in the context of, and have been associated with, the armed conflict in that State. The place of capture of the alleged victim can be a relevant factor for the analysis, but it is not the sole determining factor. Thus, there was also no reason to limit the Prosecutor’s investigation in the manner envisaged by the Pre-Trial Chamber. The Appeals Chamber’s unanimous decision to authorise the Prosecutor to commence the investigation into the alleged crimes including the alleged war crimes by the U.S. forces and CIA in Afghanistan is certainly going to trigger another chapter of tensions between the United States of America and the International Criminal Court which may include U.S. imposing sanctions against the ICC.

(The writers are Mumbai-based advocates and legal consultants)