Pre-Trial Chamber II of the International Criminal Court (ICC) has rejected unanimously the request of the Prosecutor to proceed with an investigation for alleged crimes against humanity and war crimes, on the territory of Afghanistan.
The judges decided that an investigation into the situation in Afghanistan at this stage would not serve the interests of justice. The Chamber is composed of Judge Antoine Kesia-Mbe Mindua, who will be appending a concurring separate opinion, Judge Tomoko Akane and Judge Rosario Salvatore Aitala.
On 20 November 2017, the 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, as well as regarding similar crimes related to the armed conflict in Afghanistan allegedly committed in the territory of other States Parties to the Rome Statute since 1 July 2002.
The Chamber thoroughly checked the information submitted by the Prosecutor and considered that the request establishes a reasonable basis to consider that crimes within the ICC jurisdiction have been committed in Afghanistan and that potential cases would be admissible before the Court. However, the Chamber noted the time elapsed since the opening of the preliminary examination in 2006 and the political changing scene in Afghanistan since then, the lack of cooperation that the Prosecutor has received and which is likely to go scarcer should an investigation be authorized hampering the chances of successful investigation and prosecution, as well as the need for the Court to use its resources prioritizing activities that would have better chances to succeed.
The Chamber believes that, notwithstanding the fact all the relevant requirements are met as regards both jurisdiction and admissibility, the current circumstances of the situation in Afghanistan are such as to make the prospects for a successful investigation and prosecution extremely limited. Accordingly, it is unlikely that pursuing an investigation would result in meeting the objectives listed by the victims favouring the investigation. Thus, the Chamber concluded that an investigation into the situation in Afghanistan at this stage would not serve the interests of justice and rejected the Prosecutor’s request for authorization to investigate.
Soon after the decision of the pre-trial chamber, the prosecutor issued a statement saying,
“The Prosecutor and her Office have carefully studied the decision of Pre-Trial Chamber II delivered earlier today rejecting the request to authorise an investigation into the situation in the Islamic Republic of Afghanistan.
The Office of the Prosecutor notes that the Judges of Pre-Trial Chamber II are satisfied that there is a reasonable basis to believe that crimes under the jurisdiction of the International Criminal Court have been committed in Afghanistan, and that the jurisdictional requirements of gravity and admissibility have been met. The Pre-Trial Chamber then refused to authorise an investigation on its assessment of the interests of justice. The Office will further analyse the decision and its implications, and consider all available legal remedies.”