BACKGROUND

-> In 2017 the Prosecutor requested to proceed with an investigation for alleged crimes against humanity
and war crimes on the territory of Afghanistan. The Prosecutor believed that since May 2003, members of
the US armed forces and the CIA had committed the war crimes of torture and cruel treatment, outrages
upon personal dignity, rape and other forms of sexual violence.
Pre-Trial Chamber II rejected this request in 2019, unanimously, saying such an investigation is not in the
interests of justice (under Article 53(1)(c)). So the Prosecutor filed an appeal against that decision and the
Appeals Chamber in 2020 decided to authorise an investigation into those crimes under the jurisdiction of
the Court and within the parameters identified in the Prosecutor's request.
-> Article 53(1)(c) of Rome Statute gives the Prosecutor the discretionary power to decide NOT to
proceed to an investigation if it would NOT be 'in the interests of justice'. The Prosecutor in this case found
that it WAS 'in the interests of justice' to proceed. But instead of accepting (or reviewing) the Prosecutor's
determination, Pre-Trial Chamber II ruled that it was not in the interests of justice to proceed.
-> The Appeals Chamber has now ruled that under Rome Statute Article 15(4), the sole question that the
Pre-Trial Chamber is to evaluate in deciding whether or not to authorize the opening of an investigation
where the Prosecutor acts proprio motu is whether (1) “there is a reasonable factual basis for the Prosecutor
to proceed with the investigation,” and (2) the “investigation appear[s] to fall within the Court’s
jurisdiction.” (Appeals Chamber, para. 1.)

FACTS
-> Afghanistan has been a party to the ICC since February 2003, giving the ICC jurisdiction overthe Rome
Statute crimes of war crimes, crimes against humanity, and genocide that occurred on Afghan territory after
May 1, 2003, regardless of the nationality of the alleged perpetrator.
-> However, Afghanistan has not ratified the Kampala Amendments, which incorporate the crime of
aggression into the Rome Statute, so the court lacks jurisdiction over that crime on Afghan territory.

PTC’S ARGUMENTS
1) "Victims of atrocity crimes in Afghanistan could be frustrated if the case is not successful" (para 94) ->
this is purely speculative, and counterintuitive: victims could have been far more frustrated by having
investigation dismissed altogether thereby depriving them of even the CHANCE of obtaining justice.
2) Difficulty of proceeding and 'political climate'. There has been a change within the relevant political
landscape both in Afghanistan and in key states, and the political climate surrounding the Afghan scenario
is still complex.
Yet in the Burundi situation, where Pre-Trial Chamber II acknowledged that “the Government of Burundi
has interfered with, intimidate, or harmed victims and witnesses. . . . [and]. . . is suspending international
cooperation in connection with the alleged crimes” which could pose a risk to the integrity of the
investigation, the PTC authorized the investigation.
3) Budgetary ramifications of opening the Afghanistan investigation. Yet, PTC is hardly the branch of the
ICC to make budget decisions and tell the Prosecutor in which situations she should spend OTP funding. It
is the Assembly of States Parties establishes the budget and the Committee on budget and finance that
prepares reports.

PROBLEMS WITH PTC'S RULING

1) It engaged in its own review of "the interests of justice" (by expanding the interests of justice test to
include ideas about whether the investigation had any prospect of success) instead of reviewing submissions
of the Prosecutor. The resort to the 'interests of justice' is within the Prosecutor's discretion. PTC didn't
provide a definition of the 'interests of justice', but it offered some factors that ought to be considered
relevant:
a) the significant time elapsed between the alleged crimes and the request (the majority of the alleged
abuses occurred in 2003-2004), making it difficult to obtain and preserve evidence;
b) ? Prosecutor obtaining information rather than evidence ??
 c) the likelihood that both relevant evidence and potential relevant suspects might still be available at this
stage.
2) It contravened the 'object and purpose' of the Rome Statute, which ensures that 'the most serious crimes
of concern to the international community' are prosecuted.
3) It contravened 'applicable treaties and the principles and rules of IL' as well as 'internationally recognised
human rights' (Art. 21(1)(b) and 21(3)). Such laws require that atrocity crimes, such as torture, war crimes
and crimes against humanity MUST be investigated and/or prosecuted.

CONSEQUENCES OF APPEAL CHAMBER'S DECISION

1) The absence of 'interests of justice' can be used by the Prosecutor to support the decision NOT to open
an investigation, but NOT by the PTC to contrast such decision. If the Prosecutor closes the examination on
the basis of the 'interests of justice' criterion, no agreement of the PTC is required. The PTC has no power to
stop the investigation on the basis of the 'interests of justice' criterion, the only possible tool for policy
consideration would be the exercise of the power of deferral by the UNSC.
2) When acting proprio motu (i.e. on one's own initiative), the Prosecutor has the discretionary power in
deciding not to request authorisation to investigate on the basis of the absence of 'interests of justice',
without any judicial review. Article 53(3)(b) does not apply.
-> By reversing the Pre-Trial Chamber's decision, the Appeals Chamber undid jurisprudence that could
have become quite problematic for the future work of the court.