The decision creates a distinct impression that the judges have succumbed to political pressure. Given the quality of reasoning and the charged context in which the decision was delivered, it might give rise to speculations about the political motives underlying the outcome. What else could a reasonable observer conclude when connecting the dots? To begin with, consider the inordinate and unprecedented amount of time it took the judges to consider the matter and to render this poorly-reasoned and badly-written decision: first four months before Pre-Trial Chamber III and, following its ‘curious’ dissolution and the reassignment of the situation to the newly-constituted bench in March 2018, an additional 14 months before PTC II. These irregularities have befallen the situation involving a major power which was not only vocal in its opposition to the investigation, but also went as far as to bully the Court and take punitive measures against its personnel. Moreover, difficulties in securing cooperation were also expected on other situations, where judicial authorization to investigate was nonetheless given (Georgia and Burundi).
The ICC’s Barayagwiza moment
Confrontations with recalcitrant states which refuse cooperation and render judicial functioning unfeasible are far from a novel situation for international criminal courts. In this connection, the Barayagwiza case comes to mind. In that case, the ICTR Appeals Chamber’s dismissed an indictment with prejudice to the Prosecutor and ordered the release of a defendant due to human rights violations. Following that, Rwanda ceased cooperating with the ICTR and, in a move that was perceived necessary yet was no less embarrassing for that, the Appeals Chamber urgently reconsidered the decision on the pretext of ‘new facts’. The tribunal watchers moved on since, but this episode was neither forgotten nor forgiven – the ICTR’s reputation and legacy remained tarnished.
The Afghanistan non-investigation decision may be the ICC’s first most employment database obvious Barayagwiza moment. Except the legitimacy costs of being seen bending to politics are by far higher for the permanent Court two decades down the line than they were for an early specimen of ad hoc justice focusing on a single situation. Just like the ICTR Appeals Chamber twenty years ago, PTC II must have felt there was simply no other way than to surrender to the political realities. ‘Fiat iustitia, et pereat mundus’ is easier said than done and between the law and pragmatism something got to give. However, by normatively accepting the inexorable practical and political constraints on their authority, the judges committed what Mettraux aptly called a ‘judicial suicide’. They did not have to do that though, nor need the world perish, because there was the other way. Instead of throwing the whole investigation overboard lest the US would remain displeased, the judges should have granted the request, leaving it to the Prosecutor to decide whether and when parts of it should be pursued or de-prioritized (as noted also by Whiting and de Vos).
It is possibly true that the US pressure and anticipated escalation were not the sole determinants; it is more complex and the ruling should be seen in a broader context. That said, the likely gains such as prosecutorial success, effective expenditure, etc. are not all there is to it either. The issue of the legitimacy of the ICC in the longer term is also at stake. The ‘reality’ is not what the Court is meant to accept; it is something that is shaped by the relevant actors, including the Court itself, even though to a limited degree. The ICC’s giving up on that opportunity of influence and reducing itself to the function of mere adjustment to that ‘reality’ is an abdication of its mandate. So much for the #justicematters hashtag the ICC uses to promote itself on the social media.