By Andrew Tucker, Director, thinc. and Gabriele Kuchenbecker, Research Associate, thinc.

On 12 April 2019, the Pre-Trial Chamber of the International Criminal Court (ICC) unanimously rejected the ICC Prosecutor’s request to authorize her to open a formal investigation into alleged ‘crimes against humanity’ and ‘war crimes’ in Afghanistan over the last 15 years.

The Prosecutor (Fatou Bensouda) wanted to investigate possible war crimes by the Taliban, the Afghan National Security Forces and the US military and Central Intelligence Agency that have been committed in Afghanistan since 2003.

Under the ICC’s statute, the Court’s Pre-Trial Chamber is required to approve the Prosecutor opening an investigation that has not been requested by an ICC state party or the UN Security Council. This is intended to ensure that the Prosecutor’s discretion is limited.

The Prosecutor submitted over 20,000 pages of documentation to the Pre-Trial Chamber in support of her arguments that she should investigate the possibility that war crimes were committed in the course of the conflict in Afghanistan.

However, while the Pre-Trial Chamber decided that there was sufficient evidence that crimes may have been committed in Afghanistan, and that the statutory criteria for admissibility of ‘complementarity’ and ‘gravity’ were satisfied, it held that an investigation ‘at this stage would not serve the interest of justice.’ According the Chamber, the Prosecutor should only investigate situations where ‘the prospects for successful and meaningful investigations are serious and substantive.’ Citing ‘instability on the ground’, the ‘lack of cooperation of relevant parties’ and the Court’s ‘limited resources’, the Chamber decided that make ‘the prospects for a successful investigation and prosecution extremely limited.’

The reference to ‘changes in the political landscape’ and ‘lack of cooperation’ would seem to refer to the United States’ attacks on the ICC’s credibility and refusal to cooperate in any way with the ICC. It is surely no coincidence that this unanimous rejection of the Prosecutor’s request comes shortly after the United States revoked the ICC Prosecutor’s entry visa into the United States, as part of the US Administration’s overall strategy of non-cooperation with the ICC. (The United States is not a member of the ICC; although it fully participated in the negotiations to set up the ICC in 2002, it decided ultimately not to ratify the Statute of Rome because it felt that the scope of the ICC was too wide and there were too may risks of abuse of power).

US President Donald Trump has hailed the latest decision as ‘a major international victory’ while Human Rights Watch (HRW) and Amnesty International have expressed their concerns. ‘The International Criminal Court’s judges’ rejection of an Afghanistan investigation is a devastating blow for victims who have suffered grievous crimes without redress’, remarked Param-Preet Sing from Human Rights Watch. ‘The judges’ logic effectively allows member countries to opt out of cooperating with the court and sends a dangerous message to all governments that obstructionist tactics can put them beyond the court’s reach.’

The decision comes at a time when the ICC is under fire for its lack of success. Since 2002, the Court has managed to convict only three defendants for serious crimes. Many in the academic and political communities are questioning the credibility and effectiveness of the court to achieve its declared goal: prosecuting the most serious international crimes, ending impunity and preventing mass atrocities, with a view to achieving the peace, security and well-being of the people.

The Pre-Trial Chamber’s discussion of the ‘interests of justice’ test raises important implications for other cases. It has already led to much discussion in academic circles.

It has, for example, been suggested that the Prosecutor’s assessment of whether pursuing a case is in the interest of justice, should consider the potential risks of interference with peace talks. After all, a criminal investigation would remove the hope for amnesties, whereby those under investigation would be disincentivized from collaborating with investigators. It has also been pointed out that an investigation may undermine transitional justice mechanisms that rely on local methods of reconciliation rather than criminal trials. In fact, the European Union Council has recently called for a resolution to the conflict in Afghanistan to be ‘negotiated in an inclusive way’ that ‘allows for possibilities to ensure accountability, including through transitional justice.’

In the context of the Court’s ongoing preliminary examination into ‘alleged crimes committed in the occupied Palestinian territory’ it may be expected that the Court’s Afghanistan decision will motivate Israel to use similar tactics of non-cooperation, such as barring the entry of ICC personnel, to achieve comparable results. We may also wonder whether the Court will take into account that a formal ICC investigation into crimes committed in the ‘occupied Palestinian territory’ may in fact not only disincentivize the relevant parties from collaborating with the Court, but also lead to further animosity, which may prevent the parties from returning to the negotiation table, thereby frustrating hopes for peaceful resolution of the dispute.

On the other hand, there are aspects of the Afghanistan decision that will be of real concern to Israel. Given their failure to date, the Prosecutor and the ICC as a whole are under a huge amount of pressure to make a successful prosecution and conviction. In the case of the ‘occupied Palestinian territory’, it may be that the Prosecutor will be particularly keen to open an investigation into Israeli settlements in the hope of an ‘easy victory’ that will improve the ICC’s waning reputation. This is because, although the Prosecutor does not need the approval of the Pre-Trial Chamber in the Palestine case (because she is responding to complaints submitted by an alleged ICC member state – Palestine), she could grab onto the Pre-Trial Chamber’s decision in the Afghanistan case that the ‘overall credibility of the court’ and the ‘prospects for a successful investigation and prosecution’ are relevant considerations to be taken into account when deciding whether to commence an investigation.

That said, the Prosecutor needs to get over some massive legal hurdles before deciding to initiate an investigation into Israeli settlements.

First, the Prosecutor would need to decide that by facilitating Israeli citizens to live in East Jerusalem, Judea and Samaria since 1967, Israeli leaders are potentially guilty of a ‘most serious international crime’ and a ‘mass atrocity’, and that a prosecution will be a meaningful and realistic way of achieving the ICC’s ultimate goal of promoting ‘the peace, security and well-being of the people’. In light of the fact that settlements have not cost any lives (and on the contrary, in a macro-economic sense, have arguably only improved the well-being of Palestinians), and that the status of settlements is the subject of negotiations between Israel and the Palestinians, it is hard to believe anyone could regard such settlements as a ‘mass atrocity’. More fundamentally, given the real mass atrocities being committed daily in places like North Korea, Syria, Yemen, Iraq and Sudan (just to mention a few), costing hundreds of thousands of lives, it would be outrageous, to put it mildly, if the ICC decided to devote its limited resources to the case of Israeli settlements.

Second, the Prosecutor would also need to decide that Palestine is a state party for the purposes of the ICC Statute. Although a number of legal academics argue for such recognition, it would nevertheless be a very controversial move to recognize Palestine as a state party of the ICC. Even though Palestine has the status of a UN ‘non-Member Observer state’, and has been bilaterally recognized as a state by over 130 states, on any objective view Palestine completely fails to fulfil the substantive requirements of statehood.

Third, the Prosecutor would need to decide that the settlements are on territory belonging to Palestine (article 12 of the Rome Statute). The status of East Jerusalem and the West Bank are disputed, and the borders between Israel and a possible Palestinian state are legally controversial. Israel states that it has ‘valid claims to title in this territory based not only on the historic Jewish connection to, and long-time residence in this land, its designation as part of the Jewish state under the League of Nations Mandate, and Israel’s legally acknowledged right to secure boundaries, but also on the fact that the territory was not previously under the legitimate sovereignty of any state and came under Israeli control in a war of self-defense.’ Opinions within academic circles are divided. In any event, the status of these territories and of Israeli settlements are the subject of negotiation between Israel and the PLO under the Oslo agreements. In these circumstances, it is surely not the ICC’s place to make a determination about where those borders are or should be. Worse, a decision by the ICC could have the effect of prejudicing the outcome of those negotiations. As indicated above, that would surely not be ‘in the interests of justice’.

In conclusion, with the Afghanistan decision the ICC appears to have opened a can of worms – on the one hand awarding non-cooperation and on the other pressuring the Prosecutor to achieve speedy results in other cases. However, the reasoning behind this decision on the ‘interests of justice’ test, and the results it may have, remain open to conjecture.

Andrew Tucker is Director of thinc., Gabriele Kuchenbecker is Researcher at thinc.

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