On 22 November 2022, the Office of the Prosecutor (OTP) filed its appeal brief against Pre-Trial Chamber’s II Decision pursuant to article 18(2) of the Statute authorising the Prosecution to resume investigation issued on 31 October 2022 (“Decision”). The OTP appealed paragraph 59 of Pre-Trial Chamber II’s Decision which authorised the resumption of the Court’s investigation in Afghanistan only with respect to “the crimes [and parties] falling within the situation and the conflict, as it existed at the time of the decision authorising the investigation and based on the request to open it”. The OTP requested the Appeals Chamber to correct the alleged errors identified, reverse and amend paragraph 59 of the Decision and confirm the scope of the Court’s jurisdiction in this situation in the terms previously articulated by the Appeals Chamber in the Afghanistan Appeal Judgment.  In said Judgment, the Appeals Chamber ruled that “the pre-trial chamber’s authorisation 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” (para. 2). In its Judgment, the Appeals Chamber also authorised the ICC 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 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 (para. 79).

On 23 November 2022, the Appeals Chamber appointed Judge Piotr Hofmański as Presiding Judge in the present appeal and issued an order on the conduct of the appeal proceedings. Noting that in its previous appeals in the Afghanistan Situation victims participated pursuant to rules 50(3) and 93 of the Rules and Procedure and Evidence (RPE) and that the impugned decision, the notice of appeal and the appeal brief have not been notified to the legal representatives of victims, the Appeals Chamber: i) directed the Registrar to notify filings ICC-02/17-196, ICC-02/17-197, ICC-02/17-198, and unless otherwise provided, any further filing in this situation, to the legal representatives of victims identified on page 2 of the order, and to register their filings on the record; ii) invited participating victims and other victims who participate pursuant to rule 93 RPE to file responses - that shall not exceed 20 pages - to the appeal brief, by 16h00 on 15 December 2022; and iii) invited the Islamic Republic of Afghanistan to file responses to the appeal brief not exceeding 20 pages by 16h00 on 15 December 2022.