Prosecutor Files Appeal Brief in ICC’s Afghanistan Case: On 30 September 2019, the Prosecutor of the International Criminal Court filed an appeal regarding the Pre-Trial Chamber’s (PTC) decision to decline the Prosecutor’s request to open an investigation. The Prosecutor appealed on two grounds.
First, the Prosecutor argued that the PTC erred by seeking to make a positive determination of the interests of justice, while article 53(1)(c) of the Rome Statute establishes a negative test. Specifically, the Prosecutor submits that article 53(1)(c) creates a presumption that an investigation should be opened if the requirements of (a) and (b) are met, and the Prosecutor is required to proceed unless she finds that there are substantial reasons to believe that an investigation would not serve the interests of justice. The Prosecutor argued that by the PTC requiring an investigation to be deemed to be in the interests of justice, it is reinterpreting the law. Furthermore, the Prosecutor argues that but for this reinterpretation, the PTC would have authorised the opening of an investigation.
Second, the Prosecutor argued that, even if the PTC was correct in finding that it was permitted to condition its decision on the basis of its own positive assessment of the interests of justice, the PTC abused its discretion in conducting that assessment. Specifically, the Prosecutor argued that the PTC erred by misconstruing certain key legal and factual considerations, taking into account legally impermissible considerations, and failing to adequately evaluate considerations as required by article 53(1)(c) of the Rome Statute. The Prosecutor argued the PTC did not properly take into account the interests of the victims and the gravity of the possible crimes committed. The Prosecutor also argued that the PTC erred in giving excessive weight to the feasibility of a line of inquiry concerning the United States government, when the Prosecutor presented a request for an investigation that concerned the United States, the Afghan government, as well as the Taliban and other anti-government groups. Overall, the Prosecutor argued that the abuse of discretion affected the PTC’s decision not to authorise an investigation.
The Prosecutor requests that the Appeals Chamber (1) reverse the PTC’s decision that there are not substantial reasons to believe an investigation is in the interests of justice, (2) confirm the reading of the law as understood by the Prosecutor, (3) enter its own finding regarding the Prosecutor’s determination under articles 15(3) and 53(1)(c) and authorise an investigation. Alternatively, the Prosecution seeks a remand of the case to the PTC with a direction that it authorise the opening of an investigation.
In April 2019, the Pre-Trial Chamber declined the Prosecutor’s request to open an investigation into possible crimes committed in Afghanistan. It concluded that there was reason to believe an investigation would not be in the interests of justice. This was the first time a PTC conducted an “interests of justice” assessment.(ICC)
Post by: Ryan Corbett
The post 3 October 2019 – Prosecutor Files Appeal Brief in ICC’s Afghanistan Case appeared first on ICL Media Review.
