The ICC and the situation in Afghanistan: A critical examination of the role of the Pre-Trial Chambers in the initiation of investigations proprio motu

Abstract

AbstractOne of the revolutionary aspects of the Rome Statute was the decision to grant the Prosecutor the power to trigger the International Criminal Court’s (ICC or the Court) jurisdiction in the absence of a state or United Nations Security Council referral. To guard against the abuse of this power, the Prosecutor was granted the power to initiate investigations proprio motu subject to a caveat that the decision to initiate investigations will be reviewed by the Pre-Trial Chamber (PTC) pursuant to Article 15(4) of the Statute. The interpretation of this provision came under the spotlight in the situation in Afghanistan where a turf battle between the Prosecutor and the PTC over the control of Prosecutor-initiated investigations emerged. While the Appeals Chamber’s decision to authorize investigations in Afghanistan gave a lifeline to the Prosecutor’s power to initiate investigations, it also raises questions regarding the extent of the PTC’s powers vis-à-vis the Prosecutor’s decision to initiate investigations. This article argues that the Appeals Chamber erred in its finding that the PTC has no review powers over the Prosecutor’s decision to open investigations. It further argues that the Appeals Chamber erred in its determination of the factors which the PTC must take into account when it considers the Prosecutor’s request to initiate investigations. The article argues that the decision undermines the balance of power between the Prosecutor and the PTC which was an important consideration for some states when they agreed to be part of the Rome Statute. The article also contests the Prosecutor and the Court’s interpretation of Article 18 of the Statute.