Deferral request under article 18(2) of the Rome Statute. The situation in Afghanistan under Taliban

Table of contents

1. Prelude: Taliban takeover

2. Prosecutor’s request for authorization of an investigation

3. Article 18(2) deferral request

4. Prosecutor’s Notification of status to the Pre-Trial Chamber

5. Article 18(2) in the new Taliban era

6. The new Prosecutor Karim Khan and article 18(2) deferral request

1. Prelude: Taliban takeover

This paper seeks to engage critically with the overarching legal issues basically revolving around the Afghanistan deferral request under article 18(2) of the Rome Statute¹, in the aftermath of the Taliban takeover of power in Afghanistan.

In the two weeks preceding the completion of withdrawal of the US forces from Afghanistan, which was initially scheduled for 30 August 2021, the Taliban took over control of power in Afghanistan in an unprecedented rapid fashion². This takeover occasioned a hasty and abrupt exit, from power, of the erstwhile civilian administration, thereby engendering a complete collapse of the existing political regime. It also engendered considerable legal discourse and concern about the status of the outstanding Afghanistan deferral request, at the time pending at the International Criminal Court. This paper makes a participatory contribution to the legal discourse.

2. Prosecutor’s request for authorization of an investigation

On 30 October 2017, the ICC Prosecutor notified the Presidency of her decision to request judicial authorization to commence an investigation into the situation in the Islamic Republic of Afghanistan³. Consequently, on 3 November 2017, the Presidency, in its decision, assigned ‘with immediate effect, the situation in the Islamic Republic of Afghanistan to Pre-Trial Chamber III’⁴. On 20 November 2017, the ICC Prosecutor formally submitted the request to the Pre-Trial Chamber for judicial authorization of an investigation pursuant to article 15⁵. The request was ‘to authorize the commencement of an investigation into the Situation in the Islamic Republic of Afghanistan in relation to alleged crimes committed on the territory of Afghanistan in the period since 1 May 2003, as well as other alleged crimes that have a nexus to the armed conflict in Afghanistan and are sufficiently linked to the situation and were committed on the territory of other States Parties in the period since 1 July 2002’.⁶ The request by the Prosecutor considered the situation in Afghanistan as a non-international armed conflict (NIAC). On 12 April 2019, the Pre-Trial Chamber II declined the Prosecutor’s request. It rejected the request on the basis that an investigation into the situation in Afghanistan at that stage would not serve the interests of justice.⁷ The Prosecutor decided to appeal to the Appeals Chamber, against this rejection⁸.

In a landmark judgment, the Appeals Chamber of the ICC, on 5 March 2020, decided to amend the impugned decision of the Pre-Trial Chamber, and authorized the Prosecutor to commence an investigation “in relation to alleged crimes committed on the territory of Afghanistan in the period since 1 May 2003, as well as other alleged crimes that have nexus to the armed conflict in Afghanistan and are sufficiently linked to the situation and were committed on the territory of other States Parties in the period since 1 July 2002”.⁹

In its findings, the Appeals Chamber noted that ‘the Pre-Trial Chamber is not called under article 15(4) of the Rome Statute to review the Prosecutor’s analysis of the factors under article 53(1)(a) to (c) of the Statute’¹⁰. It further found that ‘the Pre-Trial Chamber’s authorization of an investigation should not be restricted to the incidents specifically mentioned in the Prosecutor’s request under article 15(3) of the Statute and incidents that are ‘closely linked’ to those incidents’¹¹. It should be noted, however, that the Rome Statute mandates the Prosecutor to “extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under the Statute”¹². It is further worth noting that the ICC has already opened an investigation into alleged atrocity crimes, including crimes against humanity and war crimes allegedly committed in Afghanistan by the Afghan National Security Forces, the Taliban, and the US military and CIA personnel.¹³ This scenario has, however, been changed, as will be discussed in the ensuing sections, when considering the request by the new Prosecutor Karim Khan for the authorization of the resumption of the investigation in Afghanistan.

3. Article 18(2) deferral request

Pursuant to the authorization by the Appeals Chamber for the Prosecutor to conduct an investigation into the situation in the Islamic Republic of Afghanistan, the Prosecutor issued a notification of the decision dated 12 March 2020 to the Government of Afghanistan, State parties and other concerned states, in terms of article 18(1) of the Rome Statute¹⁴.

Upon receiving the Prosecutor’s notification under article 18(1), the Government of Afghanistan, on 15 April, 2020, within the 30-day time limit, formally requested the Prosecutor to defer the investigation to Afghanistan national investigations and proceedings, under article 18(2) of the Rome Statute, to allow it time to furnish evidence in connection with the investigation to hold the alleged perpetrators to account¹⁵. The Afghanistan Government requested a deferral of the Prosecutor’s investigation into cases that have been investigated or are being investigated by the national authorities in Afghanistan¹⁶. It would appear that, by making the deferral request, the Government of Afghanistan sought to assert that it was indeed conducting genuine investigations, contrary to assumptions by the ICC.

The article 18(2) deferral request found its legal foundation on the principle of complementarity. It signifies the operation of the principle which requires that the ICC should only intervene in cases where the national authorities are not willing or unable genuinely to investigate and prosecute core crimes¹⁷. The principle seeks to ensure that the Court does not duplicate, or take precedence over, domestic investigations unless warranted by inaction on the art of the national criminal jurisdiction. It underscores the principle that the State must enjoy primacy over the ICC, in the investigation and prosecution of the Rome Statute crimes. It follows, therefore, that the national authorities of Afghanistan have and enjoy primacy, over the ICC, with regard to domestic investigations of the alleged war crimes and crimes against humanity. However, it has been argued that this is based on a complementarity criteria that differ slightly from when a defendant challenges complementarity in a specific case, where the Court determines the ability and willingness of the State to investigate and prosecute the individuals most responsible for the alleged crimes¹⁸.

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¹ Article 18(2) of Rome Statute provides that “Within one month of receipt of that notification, a State may inform the Court that it is investigating or has investigated its nationals or others within its jurisdiction with respect to criminal acts which may constitute crimes referred to in article 5 and which relate to the information provided in the notification to States. At the request of that State, the Prosecutor shall defer to the State’s investigation of those persons unless the Pre-Trial Chamber, on the application of the Prosecutor, decides to authorize the investigations”. Notification mentioned in this article refers to notification under the preceding article 18(1).

² See media coverage on the Taliban takeover, for instance, at: https://apnews.com/article/taliban-takeover-afghanistan-what-to-know-1a74c9cd866866f196c478aba21b60b6.

³ This notification was made by the Prosecutor pursuant to regulation 45 of the Regulations of the Court, ICC-02/17-1-Anx1.

⁴ The Presidency, Decision assigning the situation in the Islamic Republic of Afghanistan, 3 November 2017, ICC-02-17-1.

⁵ Article 15(1) provides that: “The Prosecutor may initiate investigations pro prio motu on the basis of information on crimes within the jurisdiction of the Court”. Article 15(3) provides further that: “If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected...”.

⁶ ICC-02/17-7-Conf-Exp. Public redacted version ICC-02/17-7-Red, para. 376.

⁷ Decision by Pre-Trial Chamber Judges Antonie Kesia-Mbe Mindua (Presiding), Tomoko Akane and Rosario Salvatore Aitala, ICC-02/17-33.

⁸ The Prosecutor raised two grounds of appeal: (1). that the Pre-Trial Chamber erred in law in seeking to make a positive determination of the interests of justice; and, further or alternatively, (2). that the Pre-Trial Chamber abused its discretion in assessing the interests of justice.

⁹ The Appeals Chamber, Judgment on the appeal against the decision on authorization of an investigation into the situation in the Islamic Republic of Afghanistan, ICC-02/17-138.

¹⁰ Ibid.

¹¹ Ibid.

¹² Rome Statute, art 54(1)(a).

¹³ Hillard A. & Gilfedder C., The International Criminal Court and Afghanistan, 3 September 2021, at https://www.justsecurity.org.

¹⁴ Article 18(1) requires the Prosecutor to ‘notify all State Parties and those States which, taking into account the information available, would normally exercise jurisdiction over the crimes concerned. The Prosecutor may notify such States on a confidential basis and, where the Prosecutor believes it necessary to protect persons, prevent destruction of evidence or prevent the absconding of persons, may limit the scope of the information provided to States’.

¹⁵ ICC-02/17-139-Anx1. The Government of the Islamic Republic of Afghanistan made a deferral request by way pf a letter addressed to dated 26 March 2020, the ICC Prosecutor, signed by its Ambassador to The Netherlands.

¹⁶ Ibid.

¹⁷ See article 17 of the Rome Statute.

¹⁸ See generally, Makaia C., Afghanistan’s request for deferral: A procedural dead end, Leidenlawblog, 18 March 2021, at: https://www.leidenlawblog.nl/articles/.