On December 03, 2019, Kabul Now’s Asad Kosha sat with Fadi Abdullah, the spokesperson for the International Criminal Court (ICC) to discuss ICC’s future investigation into situation in Afghanistan. This exclusive interview comes while the ICC is under fire by the rights group for having rejected an investigation into situation of Afghanistan.

On April 12, 2019, Pre-Trial Chamber of the ICC rejected the request of the Prosecutor to proceed with an investigation on alleged crimes against humanity and war crimes committed on the territory of Afghanistan.

On December 04-06, 2019, the Appeals Chamber of the ICC held a hearing to listen to oral arguments in the appeals of Afghan victims and of the Prosecutor against Pre-Trial Chamber’ decision.

Substantiated reports by international rights organization suggest that war crimes and crimes against humanity have been committed by all warring parties in Afghanistan.         

Q: Do you know what is happening in Afghanistan or does ICC have a picture of what is happening in Afghanistan when it comes to justice and war crimes? 

A: For the decision of Afghanistan before the ICC, the prosecutors had to conduct what we called pre-examination which includes not only checking if crimes were committed or not, but also having contacts with the government and analyzing what is the situation for justice and whether the victims are receiving justice or not, if the courts and tribunals are working on cases that potentially might fall under the ICC jurisdiction, and the prosecutor and also the judges after that when they analyze the document they said that this criteria is met, meaning that we couldn’t see at that moment that justice was done for the victims of crimes that maybe of interest for the ICC so there was a study, research and analysis of the situation of the course and tribunals in Afghanistan from the perspective of what would be relevant for the ICC.

Q: On April 12, 2019, Pre-Trial Chamber of the ICC rejected the request of the Prosecutor to proceed with an investigation on alleged crimes against humanity and war crimes committed on the territory of Afghanistan, saying that an investigation into situation of Afghanistan at this stage is not in ‘the interest of justice’, I would like to know what is the exact definition of the term ‘interest of justice’ in ICC’s methodology?

A: Well, you see it’s precisely what will be discussed during the hearing and the Appeals Chamber will make a judgment on what should we understand of the terms of interest of justice. Up to the decision on Afghanistan by the Pre-Trial Chamber, what usually was done is that the prosecutors make analysis of interest of justice. The presumption is that opening an investigation would [not] be in the interest of justice unless there would be a specific reason. There would be specific reason—potential politicization of the work of the Court—or people may not want open an investigation maybe there was a peace agreement to avoid remembering the past, and so on.

The Pre-Trial Chamber decided to consider the issue of the interest of justice on its own when the prosecutors submitted the request for opening of investigation and they said that from their point of view interest of justice would cover different elements and for them, one of these elements is whether or not there will be a possibility of success in investigation, so will the investigation be successful or will it be hampered by the fact that it has been quite long time before the Prosecutor decide to open an investigation which reduces the possibility to find an evidence to contact the witnesses, and so on if there is not enough resources for the coach to be put the interest of justice to where we have more possibility to success rather than less possibility to succeed, and in their analysis they were also saying for the victims. We understand that victims want justice and want ICC to open an investigation but if the investigation is not successful, and no one is arrested, the victims will even end up being more frustrated because they had hope and their hope wasn’t fulfilled, so from the point of view of the judges of the Pre-Trial Chamber these elements meant that they wouldn’t be in the interest of justice nor in the interest of the victims to open an investigation because the chances of success are not high in this specific request. Now the prosecutors have challenged that this is part of the appeal and the Appeals Chamber have to tell us what should be the correct interpretation.

Q: Can the Pre-Trial Chamber examine or review the element of interest of justice and if the Pre-Trial Chamber can review the element of interest of justice, what exactly they are going to review?

A: From the point of the view of the Prosecutor, the interpretation would be different from the one of the Pre-Trial Chamber, so for the time being we know that there’s question of interest of justice, but to have a clear, better definition of what should be understanding from it is something that we have to wait for the Appeals Chamber’s judgment that will give us the correct interpretation. This is part of the roles of the Appeals Chamber to review whether there was errors in fact or in law that were committed maybe by the Pre-Trial Chamber or by the Trial Chamber. This is how you should think of the law and this is how you should interpret the Rome Statutes, and this is how you should apply it in specific place, so this is why we do have Appeals Chamber which is composed of five judges.

Q: For further understanding I repeat my first question, how the judges at the ICC will sum up that an investigation in Afghanistan would not be successful?  

A: Well the prosecutors submitted the request and then the judges said based on your request we see [if] there’s a reasonable basis to believe that crimes have been committed that there are grave, that there’s no justice, that there is genuine investigation on these crimes, but on the other hand, what are the chances that you will succeed with your investigation. That’s what they are trying to check on the very idea of interest of justice and then they said ok the pre-investigations have been going for more than ten years, quite long period of time which means that the likelihood to find evidence and to interview witnesses is much less than it would have been decided two years after for example. The issue of the resources we know what are the resources of the court that are available for the Court and we know the position of the state parties to the Court about increasing demands,

The budget of the Court [is less], so we should use the budget in the best possible way. They said that the political environment have changed and that likely there’s no center key and that likely there will be not the same level of cooperation. They didn’t specify specific goal and they said you know we may not have enough cooperation to be able to investigate to protect the witnesses, to arrest the suspects, and so on. This is the analysis of the Pre-Trial Chamber.

Q: You pointed out at the states’ cooperation, my question is, if the Afghan government refuses to cooperate with the judges, let’s say they are not going to cooperate with investigation, let it be arrest of the suspects or safety of the victims, could it be a reason for ICC judges to say no to opening an investigation in Afghanistan?  

A: Well, first this is a hypothetical question, because we don’t know the Afghan government will present this type of argument, and we don’t know that the appeals chamber will take this type of consideration into account. Because the whole question of shall we or not get cooperation does it enter into the idea of interest of justice or it shouldn’t be taken under the interest of justice is part of the appeals chamber looking at so it’s very difficult for me, at this stage, to give you an answer to double hypothetical question. But outside of this hypothetical situation, the Rome Statute is clear. States that are parties to the Rome Statute, they have a legal obligation to cooperate with the Court. It was a sovereign decision of Afghanistan to join the Rome Statute. You (the Afghan government) have already made a commitment to cooperate with this institution based on the things that you decided to join it.

Q:  And if a state party does not fulfill its obligations, what will be the consequences, will ICC be able to punish a state party or not?

A: No, the ICC as a court is designed to put individuals on trial and not governments, so if there is a declaration that someone is guilty, this person that can be sentenced by the judges. We cannot order sanctions against [any] state. Any state that has joined the Rome Statute, has obliged to respect the treaty under international law.  

Q: How important is this hearing session, do you think it is important?

A: Yes, it is important because it allows the judges, and the parties, and representatives that are authorized to participate to go even beyond the written submissions, they may have already submitted to the judges to present their views in the more focused way but also for the judges to be able to ask direct questions, maybe what they meant by this, how they perceived this or other element, and so on, and that allows a kind of transparent exchange of views and arguments after which the judges will be able to make decisions. So this hearing is helpful for the Appeals Chamber to not just listen but to be able to [put] questions to the prosecutors, to the victims’ representatives and other participants.

Q: Given reality on the ground, how concerned the ICC is about justice in Afghanistan?

A: The ICC is concerned about crimes anywhere, not only in Afghanistan, but everywhere, the issue is for the ICC to whether be able to intervene and investigate, and punish the perpetrator of the crime that can be done only through a legal process which requires authorization, investigation, accusation and trial.

Of course we are all part of humanity and we are concerned when there are crimes against other humans that’s why we have categories of crimes under the ICC jurisdiction. A crime that is happening in Afghanistan is also a crime against me so we are all concerned, not only about Afghanistan but also beyond [it].

Q: If the Appeals Chamber decide to open an investigation, will the ICC reach out to Afghan victims of war crimes and crimes against humanity?

A: Whatever the decision will be whether to authorize or not to open an investigation, we have the duty to publicize this decision so we have to make it public to the Afghan population, essentially through the media because we publish press resources, videos and so on; we contact the journalists and we send them information, but also on social media we are present, they can follow us on Twitter, Facebook, and other means to inform us what is the decision. If the decision is specifically to open an investigation then it means that a follow up will be needed to publicize the decision itself, but also informing the population of what will be happening afterwards and how to contact the Court and if there are cases, how the cases are developing, and so on.

What exactly it will look like depends on the security and political situation, because we have all these different scenarios that I mentioned, it’s like the field office that we might decide it needs to have a permanent presence in the country, if the security situation allows and if the authorities are willing to accept then we [will] have a field office and part of what a field office is doing is conducting outreach activities going to where the victims are and directly engaging with them, spending time with them and meeting with the local media and the NGOs and intermediaries, with university professors, and so on and explaining to all of them what is the ICC and what is being done regarding the investigations.  

Q: Many people including civil society organizations and rights activists, who are in contact with the ICC and the Afghan victims, are not happy with the ICC, claiming that the ICC was not proactive, we would like to know what your answer or answers are?  

A: Let’s make the distinction that is important. Before the opening of an investigation we don’t have the mandate and we don’t have the resources to conduct general outreach or the general public information campaign in the country because there’s no decision whether there would be an investigation or not. What has been done in regarding to Afghanistan is when the prosecutors submitted the request for authorization for opening of the investigation, then, we, as part of the Court, have obligation to bring the views of the victims to the judges. We don’t have the mandate to make general information campaign but there were contacts mainly through the intermediaries, some other means and contacts and there was a lot of Afghans who had the possibility to submit the reviews to the judges and that was noted by the judges but it was not like general campaign because that’s how legal mandate of our section is done, which is outreach, means basically informing the victims of their rights and these rights start from investigations before having an investigation it is much more limited, it is more [a sort of] conveying the views of the victims to the judges on one question, which is do you want, as a victim, that the court should open an investigation or not. So part of mandate of the Court is informing the judges on what the victims think.

Q: You have talked to Afghan victims, do you think it is the time to talk to them about their roles in the ICC?

A: There are different roles that the victims can play for the ICC depending on the different phases of proceeding, the first phases are: anyone who has valuable information, they can send these information to the prosecutors and then the prosecutors may decide to open the pre-examination based on these information and maybe decide to open an investigation based on that. So they can help the prosecutors to decide whether or not we should open an investigation on a specific crime for example. If the prosecutors are requesting authorizations from the judges, in that case they can also convey their views to the judges; they can inform the judges whether they believe that an investigation should be opened or not within which scope maybe in certain cases they will tell the judges there are crimes outside the location of the prosecutors indicated or before or after the days that the prosecutors have investigated. They can help also the judges in understanding better what is the situation, what type of crimes have been committed, and what was the impact of them, how serious and how great they are and so on, and then judges may decide to authorize to open an investigation or not, so this is the second role different than just informing the prosecutors that some crimes have happened. They can inform the judges if they should authorize the investigation or not. A third role is if an investigation is opened—I am not talking about witnesses as this is something completely different—if an investigation is opened then victims may decide if they want to participate in the cases through a lawyer-usually a lawyer is paid by the Court.

Q:  What role do you think civil society organizations can play before the ICC?

A: The civil society has historically played a very important role, first in lobbying in a lot of states to create the ICC, to agree on the treaty and in lobbying for the strong and independent institutions and prosecutors. They helped also in raising awareness about ratification of the treaty among different states. They continued to do that, they continued to speak to parliamentarians and to governments to get more states to join in. They specifically focused on the issue of what is the role with regard to potential investigations like individuals, like victims and like anyone who has valuable information, they can submit their information to the prosecutors who can decide then whether they can open an investigation but also they can play many other important roles. They can facilitate the contacts between victims and the Court when we are asking for the views of the victims and whether we should open an investigation or not. They can facilitate also the outreach and the public information of the Court, because they have their own contacts and they can help us at the Court to reach out to community leaders, religious leaders or media and so on, so they can help facilitate our works as partners, intermediaries, they can continue supporting and convincing the governments to cooperate, fund and give resources to the Court, to defend the work of the Court in public when there are potentially political attacks against the Court, and also they can help us in better understanding the country, and better planning for our activities.

Q: If the Appeals Chamber comes to a decision to say no, then what the Afghan victims can do afterwards?

A: In principle the judgment of the Appeals Chamber is a final decision. We don’t have higher chamber above the Appeals Chamber, so the decisions of the Appeals Chamber are final which doesn’t prevent the national tribunals, national courts and potentially other jurisdictions to deal with the same type of cases.  

Q: What are ICC’s protection policies to protect the victims?

A: Well, the best way to protect victims is to keep confidential, from our side there are sensitive information about identities, locations and so on, that are kept confidential in order to protect people that may have submitted this information to the Court. And when we are in contact with them, we always advise that they also be conscious and not inform anyone about their engagement with the Court. For the time being, it’s better to assure everyone to the confidentiality of the information that they have submitted to the Court, and to invite them to be very cautious at not to mention their engagement with the ICC. If they feel that there’s a threat because of their engagement with the ICC, they know how to contact us.

Q: What do you hope for Afghanistan investigation and the Afghan people?

A: I am speaking on behalf of the Court and not on my behalf. So on behalf of the Court, I think we need to see what the Appeals Chamber would decide based on the legal arguments, what is presented before it.  Justice should be done, meaning that the law should be applicable. It’s the Appeals Chamber that would tell us what should be understood on its law and how to apply it on the Afghan situation and to decide whether or not we should have an investigation. Our hopes for the Afghan people, in general, is to have peace and security and prosperity and justice.

Q: In case of United States’ attack against the court, how the leadership of the ICC will protect from such attacks?

A: I think the answer is based on two pillars, one is that the judges and prosecutors have guarantees of their independency, impartiality and protection, and second pillar is that the states party, as in the past they stood by the Court, publicly affirming their supports to the Court, they created this institution they wanted to defend, it is their judicial and impartiality. These are the two pillars that allow the Court to continue its work and to ensure that as I said its fair and the law is applied.   

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