ICC judges authorise Prosecution to resume investigation in Afghanistan
On 31 October 2022, Pre-Trial Chamber II of the International Criminal Court (ICC) authorised the Prosecution to resume investigation into the Afghanistan Situation. The judges considered that Afghanistan is not presently carrying out genuine investigations in a manner that would justify a deferral of the Court’s investigations and that Afghanistan authorities are not showing an interest to pursue the deferral request it submitted on 26 March 2020.
On 15 April 2020, the Prosecution had notified the Chamber of the Government of Afghanistan’s request of 26 March 2020 seeking a deferral, pursuant to article 18(2) of the Rome Statute of the Prosecution’s investigation into the Afghanistan Situation. On 27 September 2021, the Prosecution requested authorisation to resume its investigation under article 18(2) of the Rome Statute. The Chamber sought the assistance of the United Nations and the United Nations Assistance Mission in Afghanistan to transmit the invitation to the authorities currently representing Afghanistan to make observations on the Prosecution’s request. When no observations were received, the Prosecution transferred on 29 August 2022 to the Chamber the material it had previously received from the Afghanistan in support of the deferral request and made additional observations. Victims also submitted views and concerns.
According to article 18(2) of the Rome Statute “[…] 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 […]. 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 investigation.”
In its decision issued today, Pre-Trial Chamber II considered that the material transmitted by Afghanistan does not show that Afghanistan has investigated, or was investigating, in a manner that covers the full scope of the Prosecutor’s intended investigations and that would justify even a partial deferral of the Court’s investigations. It also considered that Afghanistan authorities did not act in a manner that shows an interest in pursuing the Deferral Request of 26 March 2020.
The Chamber emphasised that the present authorisation relates to all alleged crimes falling within the situation and the conflict, as it existed at the time of the Appeals Chamber decision authorising, on 5 March 2020, the investigation and based on the Prosecutor’s request to open it.
Decision pursuant article 18(2) of the Statute authorising the Prosecution to resume investigation
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