## Facts

- The Prosecutor sought authorization (proprio motu) to open an investigation into alleged crimes committed in connection with the armed conflict in Afghanistan since 1 May 2003.
- Alleged conduct included killings, imprisonment, and persecution by the Taliban and affiliated armed groups, with large numbers of civilian victims.
- Afghan National Security Forces were alleged to have committed torture and cruel treatment of detainees, including in state detention facilities.
- U.S. armed forces and CIA personnel were alleged to have committed torture, cruel treatment, outrages upon personal dignity, and sexual violence in detention in Afghanistan and at sites in other States Parties (including Poland, Romania, and Lithuania).
- The Prosecutor asserted domestic proceedings were not genuinely addressing the relevant conduct, supporting admissibility under complementarity.
- Thousands of victims submitted representations; the Chamber noted strong victim support for opening an investigation.
- The request required the Chamber to assess whether there was a reasonable basis to proceed and whether authorizing an investigation would be consistent with statutory requirements, including the “interests of justice.”

## Issues

1. Whether there was a reasonable basis to proceed with an investigation into crimes within the Court’s jurisdiction, and whether potential cases would be admissible (including complementarity and gravity).
2. Whether, despite satisfaction of jurisdiction and admissibility, there were substantial reasons to conclude that an investigation would not serve the interests of justice at that time.

## Decision

- The Chamber found a reasonable basis to believe crimes within the Court’s jurisdiction had been committed and that the gravity threshold was satisfied.
- The Chamber accepted that the complementarity requirement was met because relevant domestic proceedings were insufficient to bar admissibility.
- The Chamber declined to authorize the investigation, concluding that, at that stage, an investigation would not serve the interests of justice.
- In reaching that conclusion, the Chamber emphasized the passage of time, expected evidentiary and witness-security difficulties, limited prospects of meaningful state cooperation (including from non-party states whose nationals might be implicated), resource constraints, and a low likelihood of successful prosecutions or timely victim-facing outcomes.
- The Chamber treated victims’ support as important but not determinative, reasoning that initiating an investigation unlikely to be effectively pursued risked frustrating victims’ expectations.

## Legal Principles

- At the authorization stage, the Court assesses whether there is a reasonable basis to proceed and whether the potential cases would appear to fall within jurisdiction and be admissible, including under complementarity and gravity.
- The “interests of justice” inquiry may consider whether substantial reasons show that opening an investigation would not serve justice, taking account of practical constraints that could prevent meaningful investigative and prosecutorial results.
- Victims’ views may inform the interests-of-justice assessment but do not control the outcome.
- Expected feasibility factors—such as cooperation prospects, evidentiary accessibility, and resource implications—may be weighed in deciding whether authorizing an investigation would be justified at the time of the request.

## Conclusion

Pre-Trial Chamber II acknowledged jurisdiction and admissibility for potential Afghanistan-related cases but rejected authorization because it concluded that, given anticipated cooperation, evidentiary, security, and resource barriers, an investigation at that stage would not serve the interests of justice.


Situation in the Islamic Republic of Afghanistan, ICC-02/17-33 (Int’l Crim. Ct. Pre-Trial Chamber II 2019)