## Facts

- The International Criminal Court Prosecutor conducted a preliminary examination beginning in 2005 regarding alleged crimes connected to the armed conflict in Afghanistan.
- On November 20, 2017, the Prosecutor sought authorization under Rome Statute article 15 to open a proprio motu investigation into alleged crimes:
  - committed on the territory of Afghanistan since May 1, 2003; and
  - committed on the territory of other States Parties since July 1, 2002, when sufficiently linked to the Afghanistan situation.
- The request encompassed alleged crimes by the Taliban and affiliated groups (war crimes and crimes against humanity), Afghan National Security Forces (war crimes), and members of the U.S. armed forces and the CIA (war crimes).
- On April 12, 2019, Pre-Trial Chamber II found a reasonable basis to believe Rome Statute crimes had been committed and that potential cases would be admissible, but denied authorization on the ground that an investigation would not serve the “interests of justice,” citing anticipated non-cooperation and resource constraints.
- The Prosecutor appealed the denial; victims’ legal representatives also participated in appellate proceedings.
- On March 5, 2020, the Appeals Chamber unanimously reversed and authorized the opening of an investigation within specified temporal and territorial parameters.

## Issues

1. Under Rome Statute article 15(4), may a Pre-Trial Chamber deny authorization for a proprio motu investigation based on an independent “interests of justice” assessment when the Prosecutor has decided to proceed?
2. What determinations are required at the authorization stage under article 15(4), and does that inquiry include feasibility, cooperation prospects, or policy considerations?
3. Must the authorization be confined to specific incidents identified in the Prosecutor’s request, or may it extend situation-wide to other sufficiently linked crimes within the defined parameters?

## Decision

- The Appeals Chamber unanimously allowed the Prosecutor’s appeal, reversed the denial, and amended the prior decision to authorize an investigation.
- The authorized investigation covered:
  - alleged crimes committed on the territory of Afghanistan since May 1, 2003; and
  - other alleged crimes with a nexus to the Afghanistan armed conflict that are sufficiently linked to the situation and were committed on the territory of other States Parties since July 1, 2002.
- The Appeals Chamber held that the Pre-Trial Chamber erred in law by conducting an “interests of justice” assessment exceeding its article 15(4) role.
- The Appeals Chamber rejected an incident-by-incident authorization model and confirmed that authorization may be situation-wide within the approved parameters.

## Legal Principles

- Article 15(4) requires a threshold determination that there is a reasonable factual basis to proceed and that potential cases appear to fall within the Court’s jurisdiction (including admissibility at a prima facie level).
- A Pre-Trial Chamber is not tasked under article 15(4) with reviewing the Prosecutor’s “interests of justice” assessment where the Prosecutor has decided to proceed.
- The initial “interests of justice” determination is assigned to the Prosecutor under article 53(1)(c); judicial review is triggered under article 53(3)(b) only when the Prosecutor decides not to proceed on “interests of justice” grounds.
- Considerations such as anticipated cooperation, resource constraints, and prospects of successful prosecutions are not proper bases for denying authorization at the article 15(4) stage.
- Authorization of a proprio motu investigation need not be limited to incidents specified in the article 15(3) request; it may encompass other sufficiently linked crimes within the temporal, territorial, and nexus limits of the situation.

## Conclusion

The Appeals Chamber authorized a proprio motu investigation into alleged Rome Statute crimes connected to the Afghanistan conflict and clarified that article 15(4) confines Pre-Trial Chamber review to threshold jurisdictional and prima facie admissibility determinations, leaving “interests of justice” primarily to prosecutorial assessment and permitting situation-wide investigative scope within defined parameters.


Situation in the Islamic Republic of Afghanistan (II), ICC-02/17-138 (Int’l Crim. Ct. App. Ch. 2020)