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Deferral and De Facto Authorities: The ICC Prosecutor’s Assessment of Afghanistan’s Deferral Request

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Editor’s Note: This is the first article in a two-part series that sets the scene for the recent disagreement at the International Criminal Court pertaining to the Afghanistan situation through covering the Office of the Prosecutor’s Aug. 26 communication analyzing Afghanistan’s 2020 deferral request and asking that the court authorize the resumption of its investigation. The second article will analyze the ICC Pre-Trial Chamber II’s decision authorizing the Office of the Prosecutor to continue its investigation and the Office of the Prosecutor’s subsequent appeal of a part of that decision.

The Pre-Trial Chamber II of the International Criminal Court (ICC) has authorized the Office of the Prosecutor (OTP) to resume its investigation into the Afghanistan situation. For many Afghans facing life in the so-called Islamic Emirate, this move signifies not only an ember of hope remaining for accountability for crimes having allegedly taken place over the past 19 years but also a newly ignited hope that the international community will do something to put an end to the crimes allegedly being committed now. But how, alongside complicated facts and novel legal determinations, did the court get here? And what remains to be decided in the years-long investigation into the Afghanistan situation? This two-part series will answer these questions. 

This first part covers the OTP’s Aug. 26 communication that contains its articulation of materials that the government of the Islamic Republic of Afghanistan provided in support of its 2020 request to defer the ICC’s investigation, as well as its own analysis of the merits of that request and information relating to any domestic proceedings having taken place since Aug. 15, 2021. The second part will critically examine the Pre-Trial Chamber II’s Oct. 31 decision authorizing the prosecution to resume investigation and the OTP’s Nov. 22 appeal of a portion of that Pre-Trial Chamber decision. 

Introduction 

On Aug. 26, the ICC OTP requested that the court’s Pre-Trial Chamber II authorize the resumption of the court’s investigations into the Afghanistan situation. This move came in the wake of the prosecution’s September 2021 request for an expedited order to resume investigations, notwithstanding the deferral request, due to what it identified as a “significant change of material circumstances” in the country. (Through its 2021 deferral request under Rome Statute Article 18, Afghanistan asked that the ICC preemptively halt its exercise of jurisdiction in deference to Afghanistan’s own, complementary domestic proceedings.) That time, Pre-Trial Chamber II did not issue an expedited order granting the request, for want of determining those who represent the state of Afghanistan. As I will explain in the next part of this series, this time the court did grant the request to resume. The Aug. 26 communication record is important, not only for what it portends for future investigations but also for what it says about the way the court views the de facto authorities vis-a-vis its own proceedings and how the court might deal with future deferral requests. 

Why Did the ICC Defer Its Investigation?

On Mar. 26, 2020, the government of the Islamic Republic of Afghanistan requested that the ICC defer its investigation into the Afghanistan situation in light of its own domestic investigations into war crimes and crimes against humanity allegedly committed during the same time period that the ICC was considering. Under the principle of complementarity, as enshrined in Article 17 of the ICC’s governing treaty, the Rome Statute, the ICC may exercise its jurisdiction only when a state is “unwilling or unable genuinely to carry out the investigation or prosecution.” Newly presented with Afghanistan’s apparent willingness to investigate and, where needed, prosecute those allegedly responsible for the commission of Article 5 crimes, Rome Statute Article 18(2) dictates that the prosecutor defer to Afghanistan’s own investigations. The prosecutor may then review its deferral “six months after the date of deferral or at any time when there has been a significant change of circumstances based on the State’s unwillingness or inability genuinely to carry out the investigation.”

On June 12, 2020, Afghanistan provided the court with a first tranche of materials regarding cases it submitted to have investigated or was in the process of investigating. The Afghan state asserted that these materials fell within the ICC’s jurisdictional parameters. After the prosecution solicited more material on which to base its assessment of the deferral request, on Jan. 15, 2021, Afghanistan submitted a second tranche of materials. On May 7, 2021, the prosecutor and her team met with a high-level Afghan delegation to discuss the cases Afghanistan was investigating and prosecuting and to pave the way for future collaboration. On that day and the two days prior, Afghanistan submitted a third tranche of materials. Finally, on June 10, 2021, Afghanistan submitted a fourth tranche of materials.

The prosecutor had not yet pronounced on the deferral request when the Taliban took over Kabul on Aug. 15, 2021. 

The OTP’s Assessment of the Deferral Request 

In the Aug. 26 document, the OTP asserts that the government of the Islamic Republic of Afghanistan’s deferral request should be rejected. 

The OTP alleges that Afghanistan has not substantiated its request through proving the existence of a national investigation that meets the requirements of Article 17 and Article 18(2) of the Rome Statute. While not requiring complete investigations, the prosecutor asserts that domestic proceedings in the state requesting deferral “must genuinely address criminal conduct which substantially mirrors the scope of the Prosecution’s intended investigation with respect to both criminal incidents and categories of potential perpetrators.” 

The OTP demonstrated these failures in three ways. First, the OTP showed that many cases referred by Afghanistan were inadequately substantiated. In analyzing cases provided by the Afghan government, the OTP considered a case substantiated if the Afghan government had provided “two or more apparently authentic documents demonstrating substantive investigative or prosecutorial steps, regardless of the outcome.” Of the 518 cases Afghanistan referred to the OTP as being investigated or having been investigated, it provided no documentation in 280 cases and only one substantiating document in 43 cases.

Second, the OTP showed that some of the substantiated cases were outside the scope of the OTP’s authorized investigation and, therefore, were irrelevant. The prosecutor found 144 cases for which it considered investigation or prosecution sufficiently substantiated. Of those findings, the prosecutor found that 77 concerned cases outside the parameters of its authorized investigation or included information insufficient to enable the prosecutor to conclude that they would cover crimes within such parameters. 

Third, the OTP demonstrated that the remaining substantiated and relevant cases insufficiently mirror the court’s investigation for the purposes of Article 18(2). Of the 518 referred cases, the prosecutor deemed only 67 to be both substantiated and relevant. For these cases, the OTP concluded that Afghanistan’s investigations inadequately mirror the OTP’s own investigations based on four axes of analysis: the main perpetrator groups being investigated, the level of seniority of the persons being investigated, the types of crimes being investigated, and the temporal and geographic scope of the investigation. Only 11 of the 67 cases matched the profile of cases that the prosecution would likely investigate. As such, the prosecutor argues that Afghanistan has failed to demonstrate that its deferral is justified. 

As this document was submitted before the Pre-Trial Chamber’s first ruling on an Article 18(2) request, it includes ample reasoning on the side of the OTP regarding how it believes the court should treat deferral requests in general. For example, unlike the government of Afghanistan, the prosecution asserts that the state requesting deferral under Article 18 has the burden to satisfy the court that the deferral is justified, bearing both the “evidential burden” and the “burden of proof.” 

Relatedly, the prosecutor submits that neither mere evidence of state preparedness or willingness to investigate or prosecute, promises for future investigative activities, nor mere assertions that investigations are ongoing are, by themselves, sufficient to establish the state’s actual carrying out of an investigation or prosecution. The prosecutor also asserts that the Chamber should make its preliminary ruling on admissibility under Article 18(2) using the same core principles that it would use to assess admissibility under Article 17 at other procedural stages. Doing so would entail assessing the state’s proceedings based on the current facts, adopting a two-step process for the assessment of complementarity, and finding a conflict of jurisdiction only if the state’s proceedings sufficiently mirror those before the court. 

The OTP’s Observations on the Status of Domestic Proceedings Since August 2021

According to the prosecution, deferral requests under Rome Statute Article 17 must be assessed on the facts as they exist at the time of the court’s complementarity assessment. Because of this, the prosecutor also details its observations on the status of domestic proceedings since the Taliban takeover on Aug. 15, 2021. Before delving into the status of the investigations and prosecutions of the deferral cases, the prosecutor highlights the way that the authorities currently representing Afghanistan “appear to be continuing to carry out article 5 crimes.” Specifically, the OTP points to “pervasive reports of the severe and systematic deprivation of human rights of women and girls and members of religious and ethnic minorities that may amount to persecution on gender, religious, ethnic, cultural or political grounds.” The prosecutor interviewed three witnesses to evaluate its own assessment based on analysis of open-source evidence. 

The prosecutor notes that there is inaction in the investigation and prosecution of the relevant acts and persons. Having used open-source monitoring to confirm its understanding, the prosecution asserts not only that no steps have been taken to progress investigations but also that the judicial system within Afghanistan—as it existed at the time of the deferral request—has “collapsed.” Notably, the prosecutor highlights the way that “many of the laws under which the national cases referred to in the Deferral Request were investigated and/or prosecuted are now no longer in existence, presenting an apparently insuperable obstacle to the continuation or completion of these cases.” The prosecutor also references the way that relevant institutions—including investigation and prosecution authorities—are no longer functioning.

The prosecutor further found that the de facto authorities are unwilling or unable genuinely to prosecute the relevant acts and persons. To underscore this assertion, the prosecution speaks to the de facto authorities’ release of thousands of prisoners, their declaration of a general amnesty, their disbanding of relevant institutions, and their annulment of existing laws. Acknowledging that “there is currently no investigation underlying the Deferral Request to which the Court could defer,” the prosecution submitted that the court should resume its own investigation.

What Does This Mean for the Taliban and Accountability? 

Judging by its posted document, the OTP does not believe observations from the authorities currently representing Afghanistan to be required for the court to make a ruling on resumption of the investigation. The prosecution asserts that the de facto authorities’ views are not required under Rule 55(2) of the Rules of Procedure and Evidence, which states in part, “The Pre-Trial Chamber shall examine the Prosecutor’s application and any observations submitted by a State that requested a deferral in accordance with article 18, paragraph 2.” Instead of this view being an overt commentary on the de facto authorities’ legitimacy, or on the nature of their government, this assertion stems from a textual analysis of Rule 55(2), from which the prosecution contend that the word “any” modifying “observations” means that such observations “are not essential.” Indeed, the OTP explicitly asserts that the Pre-Trial Chamber has gone to extensive lengths to obtain their observations. 

While likely coming up short for many Afghans, this stance is perhaps unsurprising, especially given that, just last year, Pre-Trial Chamber II essentially reprimanded the OTP for its “statements or assumptions of political nature” on which it allegedly built its expedited order to resume its investigation into the Afghanistan situation. While Pre-Trial Chamber II suggested that the deferral request could not be legally adjudicated without addressing the “question of which entity actually constitutes the State authorities of Afghanistan since 15 August 2021,” the two authorities to which it pointed for help resolving this question, the U.N. secretary-general and the Bureau of the Assembly of States Parties to the Rome Statute, both declined to answer. Notwithstanding a lack of official pronouncement on the recognition conundrum, the Pre-Trial Chamber II has nonetheless since ruled on the OTP’s request. 

The next article in this series covers the Pre-Trial Chamber II’s decision, as well as the OTP’s subsequent appeal. While the investigation into the Afghanistan situation has, indeed, been authorized to resume, the exact scope of that situation remains to be seen.