The Pre-Trial Chamber's Afghanistan Decision: A Step Too Far in the Judicial Review of Prosecutorial Discretion?

On 12 April 2019, Pre-Trial Chamber II (PTC II) of the International Criminal Court (ICC) issued a decision pursuant to Article 15(4) of the Rome Statute on the request of the Office of the Prosecutor (OTP) to open an investigation in the situation of Afghanistan, refusing for the first time to grant an authorization to investigate in a situation initiated proprio motu. The Chamber grounded its decision on a ‘prog- nostic’ analysis of the prospects for viable investigation and prosecution, leading to the conclusion that an investigation would not have been in the interests of justice. The present contribution examines the PTC’s approach in the Afghan situation, com- paring it with previous practice in the context of authorization proceedings. It sug- gests that the Chamber’s approach to the definition of the scope of the investigation, as well as its interpretation and concrete application of the interests of justice clause, might represent an unreasonable encroachment on the OTP’s discretion. The article also examines the potential consequences of the Afghanistan decision in future cases and briefly touches upon the appellate proceedings instituted by the OTP and the legal representatives of victims. It finally argues that the current prac- tice in authorization proceedings lacks reasonable consistency, and that a ‘third way’ between excessive deference and interventionism in the exercise of judicial supervision of discretionary choices needs to be developed in practice, in order to safeguard the credibility of the Court.