Afghanistan: ICC Appeals Chamber Authorises The Opening Of An Investigation

Above Photo: The judges of the Appeals Chamber (left to right) Judge Solomy Balungi Bossa, Judge Howard Morrison, Presiding Judge Piotr Hofmański, Judge Luz del Carmen Ibáñez Carranza, and Judge Kimberly Prost on 5 March 2020 at the seat of the International Criminal Court in The Hague, Netherlands. ©ICC-CPI

Reuters reports that US Secretary of State Mike Pompeo quickly condemned the decision as “a truly breathtaking action by an unaccountable political institution, masquerading as a legal body.”  He went on to threaten the ICC, echoing John Bolton’s earlier threats made before the investigation was announced, aying, “The United States…will take all necessary measures to protect our citizens from this renegade, so-called court.” President Donald Trump’s administration imposed travel restrictions and other sanctions against ICC employees a year ago.  ICC prosecutors’ initial examination concluded there was a “reasonable basis to believe” U.S. forces had committed “crimes of torture, outrages upon personal dignity and rape and other forms of sexual violence.” The examination cited cases in Afghanistan as well as at secret Central Intelligence Agency facilities in Poland, Romania and Lithuania.

Popular Resistance believes that the rule of law must replace the practice of war. In order for war to become part of history and not of present or future foreign policy, we need to build a strong system of dispute resolution, arbitration, litigation and accountability that must include major powers like the United States. KZ

Today, 5 March 2020, the Appeals Chamber of the International Criminal Court (‘ICC’ or ‘Court’) decided unanimously to authorise the Prosecutor to commence an investigation into alleged crimes under the jurisdiction of the Court in relation to the situation in the Islamic Republic of Afghanistan. The Appeals Chamber’s judgment amended the decision of Pre-Trial Chamber II of 12 April 2019, which had rejected the Prosecutor’s request for authorisation of an investigation of 20 November 2017 and had found that the commencement of an investigation would not be in the interests of justice. The Prosecutor had filed an appeal against that decision. Judge Piotr Hofmański, the presiding judge in this appeal, read a summary of the Appeals Chamber’s judgment in open court.

Having considered the Prosecutor’s grounds of appeal against the Pre-Trial Chamber’s decision, as well as the observations and submissions of the Islamic Republic of Afghanistan, representatives of victims and other participants, the Appeals Chamber found that the Pre-Trial Chamber erred in considering the ‘interests of justice factor’ when examining the Prosecutor’s request for authorisation to open an investigation. In the Appeals Chamber’s view, the Pre-Trial Chamber should have addressed only whether there was a reasonable factual basis for the Prosecutor to proceed with an investigation, in the sense of whether crimes have been committed, and whether the potential case(s) arising from such investigation would appear to fall within the Court’s jurisdiction. Noting that the Pre-Trial Chamber’s decision contained all the necessary factual findings and had confirmed that there is a reasonable basis to consider that crimes within the ICC jurisdiction have been committed in Afghanistan, the Appeals Chamber decided to authorise the opening of an investigation itself, rather than to send the matter back to the Pre-Trial Chamber for a new decision.

The Appeals Chamber found that the Prosecutor is authorised to investigate, within the parameters identified in the Prosecutor’s request of 20 November 2017, the crimes alleged to have been 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 and are sufficiently linked to the situation in Afghanistan and were committed on the territory of other States Parties to the Rome Statute since 1 July 2002.

Judge Ibáñez Carranza filed a separate opinion on the interpretation of article 15 and its relationship with article 53 of the Rome Statute.

Judgment on the appeal against the decision on the authorisation of an investigation into the situation in the Islamic Republic of Afghanistan

Separate opinion of Judge Luz del Carmen Ibáñez Carranza

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