Afghanistan: Towards Wider Interests of Justice?

AuthorSamantha Goh
PositionLLM Candidate at LSE, specialising in Public International Law; LLB graduate (LSE) '19
Pages49-58
2020 LSE LAW REVIEW
49
Afghanistan: Towards Wider Interests of Justice?
Samantha Clare Goh*
INTRODUCTION
The Pre-Trial Ch amber (“PTC”) II of the International Criminal Court
(“ICC”) handed down its much-awaited decision on the request for authorisation
of an investigation into the situation in Afghanistan
1
earlier this year. The
escalating conflict in Afghanistan has generated thousands of civilian casualties,
many of whom were also victims of acts potentially constituting war crimes within
the ICC’s jurisdiction.
2
Thus, the decision that the investigation would not be in
the interests of justice to pursue came as a surprise to the legal community, as
given the presumed dormancy of the provision many had thought that any
admissible case would ipso facto be in the interests of justice to pursue. Indeed, it
was widely assumed that the decision would only be subject to review by the PTC
where the Office of the Prosecutor (“OTP”) had decided not to pursue an
investigation solely in the interests of justice.
3
This case note will analyse the role
of state cooperation in the PTC’s interests of justice determination in light of the
principle of complementarity, which holds that the ICC should only intervene
where a State Party was “unwilling or unable”
4
to investigate a crime falling under
* LLM Candidate at LSE, specialising in Public Inter national Law; LLB graduate (LSE)
19. This piece was originally published on the LSE Law Review Blog at:
https://blog.lselawreview.com/2019/09/afghanistan-towards-wider-interests-justice/>.
1
Situation in the Islamic Republic of Afghanistan (Decision on the Authorisation of an
Investigation) ICC-02/17 (12 April 2019).
2
Situation in the Islamic Republic of Afghanistan (Request for Authorisation of an
Investigation) ICC-02/17 (20 November 2017) [273].
3
Dov Jacobs, ‘Some extra though ts on why the ICC Pre-Trial Chamber acted ultra vires
in using the “interests of justice” to not open an investigation in Afghanistan’ (Spreading
the Jam, 12 April 2019) https://dovjacobs.com/2019/04/12/some-extra-thoughts-on-
why-the-icc-pre-trial-chamber-acted-ultra-vires-in-using-the-interests-of-justice-to-not-
open-an-investigation-in-afghanistan/> accessed 12 August 2019.
4
Rome Statute of the International Criminal Court (Rome Statute), art 17.

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