Recently, the ICC’s Pre-Trial Chamber II acknowledged the Court’s limitations when it denied the prosecutor’s request to open a full investigation in Afghanistan after an eleven-year preliminary examination that the Prosecutor initiated proprio motu.12 Although the Pre-Trial Chamber found that the jurisdictional and admissibility requirements necessary to open an investigation had been met, the Chamber determined that because the prospects for a successful investigation and prosecution were extremely limited, it would not be in the interests of justice to allocate significant resources toward an investigation that was “doomed to failure.”13 The Pre-Trial Chamber highlighted three factors that were “particularly relevant” in its analysis of whether an investigation would have realistic prospects for success and therefore serve the interests of justice:

1. the significant time elapsed between the alleged crimes and the Request;

2. the scarce cooperation obtained by the Prosecutor throughout this time, even for the limited purposes of a preliminary examination, as such based on information rather than evidence;

3. the likelihood that both relevant evidence and potential relevant suspects might still be available and within reach of the Prosecution’s investigative efforts and activities at this stage.14

The Pre-Trial Chamber’s Afghanistan determination highlights the gap between the ICC’s ambitious mandate to “end impunity” and the court’s inability to assert authority over senior state officials.15 And increases in the number of investigations without significant increases in funding have only exacerbated the problem.16 In its first two years, the Office of the Prosecutor (OTP) had only opened investigations in two situations—Uganda and the Democratic Republic of Congo.17 Nearly fifteen years later, the ICC is now pursuing investigations in twelve situations and conducting preliminary examinations in nine situations.18 This increase in investigatory work has not been met with significant increases in funding and staffing.19 In fact, the OTP’s proposed budget for 2020 was only 0.4 percentage points over the inflation rate, making it “substantially zero real growth” compared to the previous year.20

Recognizing the need to prioritize amid the ICC’s growing number of situations under investigation and the Court’s comparatively limited resources, the OTP has made “developing a clear completion strategy for situations under investigation” one of its top strategic goals for the remainder of the current Prosecutor’s term.21 However, the OTP has not yet laid out the specific factors to be considered in determining when to complete a situation under investigation. Accordingly, drawing on the Pre-Trial Chamber’s decision to reject an investigation in Afghanistan, this comment proposes several factors that could be used to determine when to suspend an OTP investigation, arguing that if the court is to eventually succeed in bringing many perpetrators to justice, it must, for now, devote its limited resources to those cases most likely to result in convictions. Part II of this comment examines how the Rome Statute addresses the scope and timing of investigations. Part III examines how the Pre-Trial and Appeals Chambers have addressed the issue of investigation completion with respect to the timing and quality of investigations. Part IV analyzes the Pre-Trial Chamber’s Afghanistan decision in the context of the Court’s jurisprudence on investigation completion. Part V assesses the merits of using the factors highlighted in the Afghanistan decision to determine when to formally suspend investigations in which prospects of success are limited. Part VI concludes by suggesting the OTP set a three-year norm for considering investigation suspension, using the factors outlined in the Afghanistan decision as guideposts in a completion strategy.

II. The Rome Statute: The Prosecutor’s Investigative Powers and Duties

A. Article 53: Initiation of an Investigation

The OTP is responsible for determining whether a situation meets the Rome Statute’s criteria to warrant an investigation.22 A preliminary examination can be initiated on the basis of information sent by individuals, groups, states, nongovernmental organizations, and referrals from a state party or the UNSC.23 If jurisdiction is triggered by the Security Council or a State Party, the Prosecutor then decides whether to initiate an investigation.24 If the prosecutor seeks to initiate an investigation on her own, proprio motu per Article 15, the Pre-Trial Chamber must authorize the investigation, taking into account the Court’s jurisdiction and whether there is a reasonable basis to proceed.25 Article 53 governs this initiation of an investigation, giving the prosecutor broad powers to initiate or determine there is no basis to proceed with an investigation under the Statute. Article 53 provides that the prosecutor “shall” initiate an investigation unless she determines there is no reasonable basis to proceed under the Statute. The Statute provides that the prosecutor shall use the following factors to determine whether to proceed with an investigation:

1. The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed;

2. The case is or would be admissible under article 17; and

3. Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.26

Similarly, upon investigation, the prosecutor may also use the following factors to determine there is not a sufficient basis for prosecution:

1. There is not a sufficient legal or factual basis to seek a warrant or summons under article 58;

2. The case is inadmissible under article 17; or

3. A prosecution is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime27

Notably, although the term “the interests of justice” appears six times in the Rome Statute and nine times in the ICC’s Rules of Evidence and Procedure, it is never defined. However, in a 2007 policy paper, the OTP wrote that the “interest of justice” in Article 53(1)(c) and 53(2)(c) is:

[E]xceptional in its nature and that there is a presumption in favour of investigation or prosecution wherever the criteria established in Article 53(1)(a) and (b) or Article 53(2)(a) and (b) have been met.28

In addition to the specific circumstances listed in Article 53(2)(c), the OTP also listed other justice mechanisms and peace processes as potential factors in the consideration of whether an investigation would serve the interests of justice.29

Article 53 also gives the Pre-Trial Chamber the power to review the prosecutor’s decision not to proceed and request that the prosecutor reconsider that decision.30 The prosecutor may also reconsider her decision to initiate or determine not to proceed with an investigation based on new information at any time, and nowhere in the Statute are there any time limits for opening or closing preliminary investigations. However, the OTP recently set the goal of creating:

[A] suitable ‘closure ratio’ by aiming to complete, where possible, as many preliminary examinations as it opens over each three-year period, while respecting the natural fluctuations of the OTP’s work.31

B. Article 54: Investigation Duties and Powers

Once an investigation has begun—whether authorized by the Pre-Trial Chamber after the prosecutor brings an investigation proprio motu or initiated by a State Party or the UNSC — the prosecutor’s investigative duties are governed by Article 54. Article 54 provides the Prosecutor with both duties and powers when conducting an investigation. She must “cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under the Statute,” and “investigate incriminating and exonerating circumstances equally.”32 She must also respect the interests of victims and witnesses, taking into account the nature of the particular crime.33

Article 54 also appears to tie the relevance of evidence to the scope of the Prosecutor’s investigative obligations, as the investigation is only required to cover “facts and evidence relevant to an assessment of whether there is criminal responsibility” under the Rome Statute.34 However, because ICC proceedings involve three different standards of proof at three different stages of the proceedings, the required relevance of evidence sought in an investigation arguably shifts with the substantive standards of proof.35 That is, for an arrest warrant or summons, Article 58 requires “reasonable grounds to believe that the person has committed a crime within the jurisdiction of the court,” but under Article 61, a confirmation of charges hearing requires “sufficient evidence to establish substantial grounds to believe that the person committed a crime within the jurisdiction of the court,” while under Article 66, the prosecutor must of course show at trial that the accused committed the crimes “beyond a reasonable doubt.”36 Accordingly, some commentators have questioned whether the Prosecutor should investigate until she has just enough proof to meet each standard at the time she arrives at the relevant stage of the proceedings, or whether the prosecutor should investigate until she has evidence sufficient to convict beyond a reasonable doubt before even seeking a warrant or summons.37 While the Rome Statute appears to provide that the Prosecutor must only investigate sufficiently to the required standard as she reaches each stage of the proceedings, in practice, the court has often required more, as discussed below.38 Nonetheless, the Rome Statute does not set temporal deadlines for concluding investigations or assessing when evidentiary burdens are met.39

C. The Rome Statute and State Cooperation: Key Investigatory Challenges

The Prosecutor’s powers during an investigation include examination of evidence and interviews of victims and witnesses, including those on the territory of a sovereign state.40 However, the Prosecutor relies on the cooperation of other actors—including States and international or non-governmental organizations—to conduct investigations, examine evidence, and interview witnesses on sovereign states’ territory.41 Although cooperation with the court is mandatory for States Parties, there is no effective enforcement mechanism for those that do not cooperate or merely cooperate, “in form but not in substance.”42 Nor are there ways to compel non-states parties to cooperate. In fact, the only recourse the Prosecutor has to deal with uncooperative states is to raise the issue with the Pre-Trial Chamber per Article 87.43 After finding a state non-cooperative, the Chamber can then refer the matter to the Assembly of States Parties (ASP) or UNSC.44 While referral to the ASP can encourage other states or actors to assert pressure on uncooperative parties, and referral to the UNSC could theoretically result in sanctions, neither of these have come to fruition to compel states to comply.45 For instance, the OTP referred Sudan to the UNSC for non-cooperation, but the UNSC has not taken concrete steps to compel the state to cooperate, given the veto powers of China, the United States, and Russia, all of whom are permanent members of the Security Council and, as non-parties to the Rome Statute, remain highly skeptical of the ICC.46

III. Pre-Trial and Appeals Chamber Jurisprudence on Investigation Completion

The ICC’s appeals and pre-trial chambers have provided conflicting interpretations of when an investigation should be completed and what a “completed” investigation might look like in practice.47 The relatively sparse caselaw has addressed the timing and substance of completed investigations most often as a tangential point in the context of a discussion of other issues. However, two rough principles have emerged from the court’s guidance regarding investigation completion:

1. investigations should ideally be complete by the time a case reaches the confirmation of charges hearing, and

2. an investigation may be considered complete when it has elicited enough high quality, probative evidence to have high prospects for success in a conviction at trial.

A. Timing of Investigations

In Prosecutor v. Lubanga, in a decision primarily addressing the rules for disclosure and redaction in a confirmation hearing, the Pre-Trial Chamber stated that the OTP’s investigation “must be brought to an end before the confirmation hearing, barring exceptional circumstances that might justify later isolated acts of investigation.”48 However, the Appeals Chamber later reversed this, finding that although it would “ideally be desirable” to complete an investigation by the time of the confirmation hearing, it is not a requirement of the Rome Statute.49 The Appeals Chamber also explicitly stated that the threshold for the confirmation of charges was lower than that for conviction and could be satisfied before the end of the investigation.50

However, six years later, in Prosecutor v. Mbarushimana, the Appeals Chamber addressed the issue of how evidence should be evaluated during confirmation of charges hearings, and in doing so, the Chamber touched upon the issues of both timing and availability of evidence regarding investigations.51 Instead of presuming the credibility of evidence at the confirmation stage, the Appeals Chamber held that the Pre-Trial Chamber should evaluate the evidence to draw conclusions where there are ambiguities or inconsistencies.52 In support of this conclusion, the Chamber explicitly tied investigation completion to availability of evidence:

As previously indicated by Appeals Chamber, the investigation should largely be completed at the stage of the confirmation of charges hearing. Most of the evidence should therefore be available, and it is up to the Prosecutor to submit this evidence to the Pre-Trial Chamber.53

The decision also noted that if the Prosecutor required more time to “complete” an investigation, she could postpone the date of the confirmation hearing or request another confirmation hearing on the basis of additional evidence if a confirmation hearing found the evidence to be insufficient.54 Notably, when citing the Appeals Chamber’s decision in Lubanga, the Mbarushimana Appeals Chamber substituted the word “ideally” with the word “should.”55

As a result, subsequent chamber decisions and commentators have interpreted the Mbarushimana decision to mean that “there exists a legally enforceable presumption that the prosecution’s investigation should be completed by the time of confirmation.”56 For example, in Prosecutor v. Kenyatta (Kenya II), the single judge in Pre-Trial Chamber II referred to both the Lubanga and Mbarushimana decisions when she held that:

[T]he principle approach is that the Prosecutor should be ready with the investigation during [confirmation of charges hearings] and any delay in doing so is exceptional and should be justified.57

B. Quality of Investigations

In Prosecutor v. Gbagbo, the Pre-Trial Chamber addressed both timing and evidentiary standards with respect to investigation completion while criticizing the relevance and lack of probative value of much of the evidence the Prosecutor brought to the confirmation of charges hearing.58 The decision extended the presumption that the Prosecutor “complete” her investigation before the confirmation of charges hearing by adding that the Chamber must assume the Prosecutor would bring her strongest possible case at the confirmation of charges:

Even though article 61(5) of the Statute only requires the Prosecutor to support each charge with “sufficient” evidence at the confirmation hearing, the Chamber must assume that the Prosecutor has presented her strongest possible case based on a largely completed investigation.59

The court then quoted the Appeals Chamber’s language in Mbarushimana, noting that completing investigations before confirmation of charges and making sure all evidence is available at that stage would help safeguard the rights of the accused, who should not be presented with a “wholly different evidentiary case at trial.”60 Commentators have noted that the Gbagbo decision may have therefore turned the confirmation of charges hearing into a “mini-trial” to predict whether an actual trial would succeed in convicting a suspect beyond a reasonable doubt, as opposed to merely a determination of whether there exist reasonable grounds to believe the suspect committed the crimes charged.61

Recognizing this critique, some chambers have emphasized that a confirmation is neither a “trial before the trial, nor a mini-trial.”62 For example, in Prosecutor v. Abu Garda the Pre-Trial Chamber took care to warn of the danger of using an overly high standard in evaluating the evidence:

Accordingly, at no point should Pre-Trial Chambers exceed their mandate by entering into a premature in-depth analysis of the guilt of the suspect. The Chamber, therefore, shall not evaluate whether the evidence is sufficient to sustain a future conviction. Such a high standard is not compatible with the standard under article 61(7) of the Statute.63

However, there is still uncertainty regarding when an investigation should be considered complete, and whether completion requires the Prosecutor to present her strongest case at confirmation of charges.64 For example, in his concurrence in Kenya II, Judge Eboe-Osuji, now the President of the ICC, asserted that the Mbarushimana Appeals Chamber’s normative statement that an investigation should be completed before the confirmation hearing was merely dicta.65 Further, he highlighted the difficulty of precisely defining a complete investigation in practice:

It is further to be considered, as a matter of policy and practicality, that a rule of limitation that engages the question whether the post-confirmation investigations in particular circumstances had resulted from what my esteemed colleagues describe as lack of ‘proper’ or ‘thorough’ or ‘full’ investigation is not easily implemented. Contrary to public policy, it will merely invite needless interlocutory litigation, especially as to what amounts to ‘proper’ or ‘thorough’ or ‘full’ investigation.66

The court has yet to provide conclusive guidance regarding the circumstances under which an investigation can or should be complete, and the lines between the three separate evidentiary standards set out in the Rome Statute remain blurry with respect to investigation completion. However, by indicating that investigations should be largely completed so that the prosecutor can present her strongest possible case at a confirmation of charges hearing, the court has appeared to indicate that accessible evidence and high prospects for a conviction might be two elements of a complete investigation.

IV. The Afghanistan Decision

In 2017, the Prosecutor requested authorization from the Pre-Trial Chamber to open an investigation into alleged war crimes and crimes against humanity related to armed conflict that had occurred in Afghanistan since May 2003, in addition to other crimes allegedly committed in the territory of Afghanistan and on other states party to the Rome Statute that had occurred after July 2002.67 The Prosecutor had undertaken a preliminary examination of the Afghanistan situation since 2006, examining alleged crimes carried out by the Taliban, Afghan government forces, and United States soldiers and CIA Officers.68 However, in April 2019, Pre-Trial Chamber II unanimously rejected the Prosecutor’s request to proceed to an investigation of the situation, determining that even though the crimes were within the court’s jurisdiction, proceeding with an investigation would not serve the interests of justice at this stage.69

Although the Pre-Trial Chamber addressed the discrete issue of whether an investigation into the situation in Afghanistan should proceed from the preliminary examination stage to a full situation under investigation, the OTP may be able to draw from this decision much broader lessons about when to advance or discontinue an investigation at any stage—whether a situation is in the early stages of a preliminary examination, or has already been under OTP investigation for several years. After determining that the Rome Statute’s admissibility and jurisdictional requirements were satisfied, the Chamber turned to the issue of whether a full investigation into the situation in Afghanistan would serve the interests of justice, in accordance with Article 53(1)(c).70 Noting the absence of a definition or further guidance in the Rome Statute regarding the meaning of “interests of justice,” the Chamber looked to the:

[O]verarching objectives underlying the Statute: the effective prosecution of the most serious international crimes, the fight against impunity and the prevention of mass atrocities.71

The Chamber then went so far as to lay out what appears to be a rule regarding when an investigation serves the interests of justice:

All of these elements concur in suggesting that, at the very minimum, an investigation would only be in the interests of justice if prospectively it appears suitable to result in the effective investigation and subsequent prosecution of cases within a reasonable time frame.72

Noting that the Court was neither meant nor equipped to address all instances in which the world’s most serious crimes were committed, the Chamber then laid out three factors relevant to an analysis of an investigation’s prospects for success:

1. the significant time elapsed between the alleged crimes and the Request;

2. the scarce cooperation obtained by the Prosecutor throughout this time, even for the limited purposes of a preliminary examination, as such based on information rather than evidence;

3. the likelihood that both relevant evidence and potential relevant suspects might still be available and within reach of the Prosecution’s investigative efforts and activities at this stage.73

Many commentators were quick to decry the Pre-Trial Chamber’s examination of prospects for a successful investigation and use of the above factors in its “interests of justice” analysis.74 Some argued that the decision was “a shocking abandonment of the victims,” which would weaken the court’s credibility.75 Others argued that the court caved to political pressure from the United States in light of the U.S. government’s recent cancellation of the Prosecutor’s visa and threats to retaliate against the ICC if an Afghanistan investigation were to proceed.76 Others said the decision opened the doors to impunity and “handed states a playbook to insulate themselves from the law’s reach,”77 while others noted it could be the beginning of a broader effort of the court to focus resources on only the cases it was most likely to win.78

However, viewed in light of the court’s decisions requiring the prosecutor to largely complete her investigation before the Pre-Trial Chamber can confirm charges (as discussed in Part III ), the Pre-Trial Chamber’s decision not to authorize an investigation in Afghanistan can be seen as an extension of the court’s continued emphasis on the importance of bringing investigations that elicit enough high-quality evidence to succeed in a conviction at trial. Put differently, the Afghanistan decision is consistent with much of the court’s prior reasoning: given limited resources, it is prudent to suspend an investigation as soon as it becomes clear that further investigation will not reveal evidence sufficient to secure a conviction beyond a reasonable doubt. In the case of Afghanistan, the court has simply articulated this message at an earlier stage in the court’s processes—before an unsuccessful investigation even gets underway.

V. Criteria for Assessing Whether Prospects for a Successful Investigation Should Trigger Suspension

In holding that an investigation into Afghanistan would not serve the interests of justice because it would not be likely to succeed, the Pre-Trial Chamber articulated three criteria that were “particularly relevant” for determining when “prospects for a successful investigation and prosecution are extremely limited”:

1. time elapsed since the alleged crimes took place,

2. amount of cooperation obtained from states, and

3. availability of evidence and/or suspects.79

Whether the analysis takes place before an investigation begins or after one is already underway, these factors remain relevant to predicting prospects for investigative success. Accordingly, the OTP should consider adopting the Afghanistan factors—in addition to others—as it develops a completion strategy for situations already under investigation.

Below are several factors that could be helpful in formulating a suspension strategy for investigations under investigation: the first three are those the Pre-Trial Chamber articulated as “particularly relevant” in its Afghanistan decision, and the others are considerations that the Pre-Trial Chamber or other commentators have addressed. Given the dynamic nature of situations under investigation and the competing priorities of the OTP, the factors below are neither an exhaustive list of variables to consider, nor should they be mechanically considered for each situation under investigation. Because of the OTP’s limited ability to control many aspects of an investigation, “an overly rigid and formalistic approach that insists that the investigation be ‘complete’ before arrest or confirmation is unwise.”80 Further, because the variables below are continuous rather than dichotomous, their application to individual situations may not always be straightforward. Thus, while the factors below might be weighted differently depending on the unique circumstances of each situation, they may serve as useful guideposts for the OTP as it assesses the wisdom of proceeding with or suspending an investigation.

A. Time Elapsed Between Alleged Crimes and Investigation

The first factor that the Pre-Trial Chamber listed as particularly relevant to a determination of whether an investigation’s prospects of success were “serious and substantive” is the amount of time elapsed between the crimes alleged and the request to open an investigation.81 This factor could be broadened to an examination of the time elapsed between the alleged crimes and any decision to continue or suspend an investigation at any point in the life cycle of an investigation. In its decision, the Chamber noted that “even by criminal justice standards, the preliminary examination in Afghanistan was particularly long.”82 The Chamber also noted that during the eleven years of the preliminary examination, the political situation in the area of investigation was particularly unstable, exacerbating the difficulty of investigating and properly preserving evidence.83

However, while keeping short the time elapsed since the alleged crimes occurred might seem wise at first glance, setting hard time limits on the closure of investigations could encourage states to obstruct OTP investigators’ efforts with the knowledge that if they just withhold cooperation or access to evidence long enough, the OTP will eventually abandon any investigation. Given this concern, it is imperative that the OTP set neither a hard time limit on all investigations, nor close any investigation fully, particularly given the fact that there are no statutes of limitation on the types of crimes the ICC prosecutes.84 Rather, the OTP should suspend an investigation and preserve evidence already collected with the goal of returning to the investigation once the circumstances in the situation under investigation change. The conviction of Bosco Ntaganda, after a seven-year gap between the issuance of an ICC warrant for his arrest and his surrender to the court in 2013 demonstrates that this suspension approach can work.85 Notably, after Ntaganda’s surrender, in an OTP Programme document, the Court began mentioning the need to have a plan to “hibernate investigations,” noting that:

[T]he Office has been forced to reassess its operational model for investigations, breaking it down into active investigations, cases awaiting arrest (investigations in hibernation) and trials.86

Therefore, if time elapsed is considered as a factor in prospects for a successful investigation, the OTP should have in place a system capable of keeping case files up to date and ready for trial should circumstances change. This will dispel the notion that suspension of an investigation would be tantamount to allowing perpetrators of the world’s worst crimes to commit them with impunity. The court’s conviction of Ntaganda after a seven-year delay in bringing him into custody is a harbinger of success for returning to similarly delayed investigations that may be temporarily suspended in the future.

B. Level of Cooperation with Investigators

The second factor the Pre-Trial Chamber examined in its analysis of the interests of justice was:

[T]he scarce cooperation obtained by the Prosecutor throughout [the preliminary examination], even for the limited purposes of a preliminary examination, as such based on information rather than evidence.87

The issue of lack of cooperation has become a significant obstacle in many of the prosecutor’s investigations, particularly in the other investigations that the prosecutor has opened on a proprio motu basis in Kenya, Georgia, and Burundi.88 In Kenya, none of the cases the prosecutor has brought to date has succeeded.89 In Georgia, the OTP undertook an eight-year preliminary examination and is currently in the third year of a formal investigation, yet no cases have been brought yet.90 And while the OTP opened the Burundi investigation in 2017, Burundi recently left the court, making prospects for success appear even slimmer.91 In addition, investigations into Libya and Sudan—the two situations that the Security Council has referred—have received virtually no support from the states themselves or the Security Council.92

In policy documents, the prosecutor has drawn attention to the lack of cooperation from states under investigation, other states parties to the Rome Statute, and the Security Council.93 For example, in 2016, the OTP released a policy document stating that in prioritizing investigations and selecting cases to pursue within open investigations, the prosecutor would consider, “the international cooperation and judicial assistance” as one of the factors “used to assess operational viability in a relative manner across all cases.”94 The paper noted that cases should be selected where there are reasonable prospects for conviction.95 The decision of the Pre-Trial Chamber to decline the prosecutor’s request to open an investigation in Afghanistan is therefore an extension of the idea that only cases with reasonable chances for success should be pursued. The OTP should therefore consider making international cooperation and judicial assistance a factor not only in determining which cases to bring to trial from open investigations, but also as a factor in determining which investigations to suspend or decline to open initially.

C. Availability of Evidence and Suspects

The third factor that the Pre-Trial Chamber examined in the Afghanistan decision was:

[T]he likelihood that both relevant evidence and potential relevant suspects might still be available and within reach of the Prosecution’s investigative efforts and activities at this stage.96

The Pre-Trial Chamber noted that many of the alleged crimes took place when the Prosecutor was “not in a position to meaningfully act for the purposes of preserving evidence, or for the protection of witnesses.”97 From a pragmatic standpoint, it seems reasonable that an investigation that will not produce evidence or witnesses is an investigation that should not be allowed to proceed.

However, in spite of the Pre-Trial Chamber’s assertion that evidence and witnesses in Afghanistan would be unavailable, commentators and legal advocates have asserted that to the contrary, there are “well-documented atrocities” in the region.98 Therefore, some have argued that it is not the unavailability of evidence, witnesses, and suspects, but rather, the intense political pressure that has caused the Pre-Trial Chamber to reject the prosecutor’s request to open a full investigation.99 The Pre-Trial Chamber has acknowledged the connection between the factors of lack of cooperation and unavailability of evidence, noting in their decision that:

[C]hanges within the relevant political landscape both in Afghanistan and in key States (both parties and non-parties to the Statute), coupled with the complexity and volatility of the political climate still surrounding the Afghan scenario, make it extremely difficult to gauge the prospects of securing meaningful cooperation from relevant authorities for the future, whether in respect of investigations or of surrender of suspects; suffice it to say that nothing in the present conjuncture gives any reason to believe such cooperation can be taken for granted.100

Commentators have called it “the ICC’s evidence problem,” in that the court has failed to secure sufficient evidence to convict suspects at trial, often due to the lack of cooperation and access to the suspects they pursue.101 Commentators have argued that part of this “evidence problem” stems from the OTP’s policy of pursuing just a few, high-profile suspects in each situation.102 This policy, they argue, assumes evidence against high-ranking, powerful suspects will eventually be found, instead of basing cases and arrest warrants on the evidence that is readily available, whether it is for the most high-profile cases or not.103 Given these concerns, it is worth considering whether investigations that have unearthed little evidence—whether because of lack of cooperation, time-elapsed, or other factors—should be suspended in favor of pursuing those where evidence is more readily available and thus convictions are more likely.

D. Resource Constraints

Although not highlighted in the Afghanistan decision as one of the three “particularly relevant” factors for determining prospects for a successful investigation, the Pre-Trial Chamber also addressed the issue of significant resource constraints within the OTP.104 The Pre-Trial Chamber found authorizing an investigation in Afghanistan would result in the reallocation of financial and human resources that would be siphoned from other OTP investigations, cases, or preliminary examinations that had more “realistic” prospects for success.105 The Pre-Trial Chamber reasoned that devoting resources to an investigation that was less likely to succeed than other investigations already underway was not in the interests of justice. Given the gap between the ICC’s sweeping mandate to “put an end to impunity” for the perpetrators of the world’s worst crimes, and its comparatively limited resources to investigate those perpetrators, examining available resources as a factor in the analysis of prospects for success may not only be practical, but also necessary for the court to see any success in convictions at all.

E. Justice for Victims

A final consideration that appeared in the Pre-Trial Chamber’s analysis of whether an Afghanistan investigation would be in the interests of justice was a discussion of victims’ expectations.106 Although 680 out of the 699 victim applications submitted to the Pre-Trial Chamber welcomed an investigation into Afghanistan, the Pre-Trial Chamber ultimately found that:

[I]t is unlikely that pursuing an investigation would result in meeting the objectives listed by the victims favouring the investigation, or otherwise positively contributing to it.107

The court reasoned that raising victims’ “aspirations” by opening an investigation, only to frustrate them once an investigation failed could create:

[F]rustration and possibly hostility vis-à-vis the Court and therefore negatively impact its very ability to pursue credibly the objectives it was created to serve.108

F. Other Factors

The factors described above are not a finite list. They are merely suggestions of criteria the OTP might consider as it develops a comprehensive completion strategy for suspending investigations already underway. Other factors could include: potential for peace negotiations, security on the ground in the situation under investigation, and the ability to protect witnesses, for instance.109 As the ICC enters its third decade, the OTP should consider using the factors specifically highlighted in the Afghanistan decision as guideposts for shepherding investigations through the ICC process that are most likely to lead to convictions. More successes may ultimately build the political will and material support necessary to garner the investigative cooperation and access to evidence that have been so lacking within the past two decades of the court’s existence.

VI. Conclusion

The Pre-Trial Chamber’s decision not to authorize an investigation in Afghanistan is an extension of the Court’s prior investigation completion jurisprudence emphasizing the need for investigations that afford reasonable prospects for successful convictions at trial. The OTP should use the factors set out in the Afghanistan decision to assess when investigations—whether at the beginning stages of a preliminary examination or several years into a full investigation—should be suspended due to limited prospects for success for the moment. Given that the OTP has already set a goal of completing as many preliminary examinations as it opens in a three-year period,110 the OTP should also consider setting a three-year norm for completing situations under investigation. At the three-year mark, if after examining the factors discussed above, the OTP finds that there are limited prospects for success, it should suspend the investigation and devote resources to cases that are more likely to result in convictions.

This is not to say that the OTP should refrain from pursuing difficult cases. Rather, it should continue to pursue those cases that have prospects for success, while suspending investigations in those where success is less realistic given current circumstances. As the conviction in Ntaganda has shown, an investigation that does not proceed for several years can suddenly be reinvigorated when circumstances change.

As a relatively new institution, the court should initially build its legacy by pursuing cases where international support and resources are most likely to assist the court in securing convictions. More successful convictions will ultimately help garner the political will needed to encourage states parties, non-member states, and the UNSC to more readily cooperate and provide resources. This will further contribute to the court’s legitimacy and credibility in the eyes of the international community, the support of which is crucial if the court is to succeed in its mission of ending impunity.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   See, e.g., David Smith, ICC Prosecutor Shelves Darfur War Crimes Probe, The Guardian, Dec. 14, 2014, available online; ICC Prosecutor Shelves Darfur War Crimes Inquiries, BBC News, Dec. 12, 2014, available online; Michele Kelemen, U.N. Whistleblower: International Community Has Failed Darfur, NPR, Dec. 30, 2014, available online. ↩

2. 2.

   Fatou Bensouda, ICC Prosecutor, Statement to the United Nations Security Council on the Situation in Darfur, Pursuant to UNSCR 1593 (2005) (Dec. 12, 2014), available online. ↩

3. 3.

   Smith, supra note 1. ↩

4. 4.

   James A. Goldston, Don’t Give Up on the ICC, Foreign Pol., Aug. 8, 2019, available online. ↩

5. 5.

   Tom White, States Failing to Seize Sudan’s Dictator Despite Genocide Charge, The Guardian, Oct. 21, 2018, available online. ↩

6. 6.

   Joseph Goldstein & Declan Walsh, Ousted Sudanese President Al-Bashir Moved to Prison, N.Y. Times, Apr. 17, 2019, available online.

   (In April 2019, al-Bashir was forced from power in Sudan and is being tried in Sudan on domestic corruption and money laundering charges. It is unclear if he will be extradited). ↩

7. 7.

   Fatou Bensouda, ICC, Statement on the Withdrawal of Charges Against Mr. Uhuru Muigai Kenyatta (Dec. 5, 2014), available online. ↩

8. 8.

   Id. ↩

9. 9.

   Jina Moore, Uhuru Kenyatta is Declared Winner of Kenya’s Repeat Election, N.Y. Times, Oct. 30, 2017, available online. ↩

10. 10.

    ICC in Numbers, CICC, available online (last visited Feb. 18, 2020).

    (Convictions include Thomas Lubanga Dyilo, Germain Katanga, Ahmad Al Faqi Al Mahdi, Jean-Pierre Bemba [acquitted on appeal], and Bosco Ntaganda [subject to appeal]). ↩

11. 11.

    See, e.g., Gwen Barnes, The International Criminal Court’s Ineffective Enforcement Mechanisms: The Indictment of President Omar Al Bashir, 34 Fordham Int’l L.J. 1584 (2011), available online; Adam Bower, Contesting the International Criminal Court: Bashir, Kenyatta, and the Status of the Nonimpunity Norm in World Politics, 4 J. Global Sec. Stud. 88 (2019), paywall. ↩

12. 12.

    Situation in Afghanistan, ICC-02/17-33, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan, ¶ 91 (ICC PTC II, Apr. 12, 2019) [hereinafter Afghanistan Decision], available online. ↩

13. 13.

    Id. ¶ 90. ↩

14. 14.

    Afghanistan Decision, supra note 12, ¶ 91. ↩

15. 15.

    See Bower, supra note 11. ↩

16. 16.

    See Rebecca J. Hamilton, Closing ICC Investigations: A Second Bite at the Cherry for Complementarity?, Harv. Hum. Rts. Prog. Working Paper Series (May 2012), available online. ↩

17. 17.

    See Situations Under Investigation, ICC, available online (last visited Feb. 18, 2020). ↩

18. 18.

    Id. ↩

19. 19.

    See Hamilton, supra note 16, at 2. ↩

20. 20.

    See Assembly of State Parties, ICC, Proposed Programme Budget for 2020 of the International Criminal Court, ICC-ASP /18/10 (Jul. 25, 2019), available online. ↩

21. 21.

    See Office of the Prosecutor, ICC, Strategic Plan 2019–2021 (Jul. 17, 2019) [hereinafter Strategic Plan], available online. ↩

22. 22.

    See Preliminary Examinations, ICC, available online (last visited Feb. 18, 2020). ↩

23. 23.

    Office of the Prosecutor, ICC, Policy Paper on Preliminary Examinations (Nov. 2013), available online. ↩

24. 24.

    William Schabas, An Introduction to the International Criminal Court 252 (4th ed. 2011); Office of the Prosecutor, ICC, Annex to “Paper on Some Policy Issues Before the Office of the Prosecutor”: Referrals and Communications (2004), available online. ↩

25. 25.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Art. 15, available online. ↩

26. 26.

    Id. at Art. 53. ↩

27. 27.

    Id. at Art. 53(2). ↩

28. 28.

    Office of the Prosecutor, ICC, Policy Paper on the Interests of Justice (Sep. 2007), available online. ↩

29. 29.

    Id. at 7. ↩

30. 30.

    Id. ↩

31. 31.

    Strategic Plan, supra note 21, at 17. ↩

32. 32.

    Rome Statute, supra note 25, at Art. 54. ↩

33. 33.

    Id. ↩

34. 34.

    Alex Whiting, Dynamic Investigative Practice at the International Criminal Court, 76 Law & Contemp. Probs. 163, 165–66 (2014), available online. ↩

35. 35.

    Id. at 163. ↩

36. 36.

    Rome Statute, supra note 25, at Arts. 58, 61, 66. ↩

37. 37.

    Whiting, supra note 34, at 165; See also Triestino Mariniello, Questioning the Standard of Proof: The Purpose of the ICC Confirmation of Charges Procedure, 13 J. Int’l Crim. Just. 579 (Jul. 2015), paywall, doi. ↩

38. 38.

    See The Prosecutor v. Laurent Gbagbo, ICC-02/11-01/11, Decision Adjourning the Hearing on the Confirmation of Charges Pursuant to Article 61(7)(c)(i) of the Rome Statute, ¶ 25 (ICC PTC I, Jun. 3, 2013), available online. ↩

39. 39.

    Whiting, supra note 34, at 165. ↩

40. 40.

    Rome Statute, supra note 25, at Art. 54. ↩

41. 41.

    Rome Statute, supra note 25, at Part 9. ↩

42. 42.

    Whiting, supra note 34, at 183. ↩

43. 43.

    Rome Statute, supra note 25, at Art. 87. ↩

44. 44.

    Id. ↩

45. 45.

    Schabas, supra note 24, at 268. ↩

46. 46.

    See Stuart Ford, The ICC and the Security Council: How Much Support Is There for Ending Impunity?, 26 Ind. Int’l & Comp. L. Rev. 33 (2016), available online; see also William Pace & Fadel Abdul Ghany, Curbing Security Council Vetoes, ICRtoP (Oct. 22, 2015), available online. ↩

47. 47.

    Mariniello, supra note 37, at 589–90; Whiting, supra note 34, at 167. ↩

48. 48.

    The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, Judgment on the Prosecutor’s appeal against the decision of Pre-Trial Chamber I entitled “Decision Establishing General Principles Governing Applications to Restrict Disclosure pursuant to Rule 81 (2) and (4) of the Rules of Procedure and Evidence,” ¶ 49 (ICC AC, Oct. 13, 2006), available online. ↩

49. 49.

    Id. ↩

50. 50.

    Id. ¶ 56. ↩

51. 51.

    The Prosecutor v. Callixte Mbarushimana, ICC-01/04-01/10 OA 4, Judgment on the appeal of the Prosecutor against the decision of Pre-Trial Chamber I of 16 December 2011 entitled “Decision on the confirmation of charges” (ICC AC, May 30, 2012), available online. ↩

52. 52.

    Id. ↩

53. 53.

    Id. ¶ 44. ↩

54. 54.

    Id. ↩

55. 55.

    Whiting, supra note 34, at 169. ↩

56. 56.

    Id. ↩

57. 57.

    The Prosecutor v. Francis Kirimi Muthaura and Uhuru Muigui Kenyatta, ICC-01/09-02/11, Decision Requesting Observations on the “Prosecution’s Request to Amend the Final Updated Document Containing the Charges Pursuant to Article 61(9) of the Statute,” ¶ 9 (ICC PTC II, Jan. 29, 2013), available online. ↩

58. 58.

    Prosecutor v. Gbagbo, supra note 38, ¶¶ 15, 28–30. ↩

59. 59.

    Id. ¶ 25. ↩

60. 60.

    Id. ↩

61. 61.

    See, e.g. Mariniello, supra note 37; Whiting, supra note 34. ↩

62. 62.

    The Prosecutor v. Bahar Idriss Abu Garda, ICC-02/05-02/09, Decision on the Confirmation of Charges, ¶ 39 (ICC PTC I, Feb. 8, 2010), available online. ↩

63. 63.

    Id. ¶ 40. ↩

64. 64.

    See, e.g., The Prosecutor v. Uhuru Muigui Kenyatta (Kenya II), ICC-01/09-02/11, Corrigendum of Concurring Separate Opinion of Judge Eboe-Osuji, Decision on Defence Application Pursuant to Article 64(4) and Related Requests, ¶ 90 (ICC TC V, May 2, 2013), available online. ↩

65. 65.

    Id. ¶ 88. ↩

66. 66.

    Id. ↩

67. 67.

    See Preliminary Examination, Afghanistan, ICC, available online (last visited Feb. 18, 2020). ↩

68. 68.

    Id. ↩

69. 69.

    Id. ↩

70. 70.

    Afghanistan Decision, supra note 12, ¶ 87. ↩

71. 71.

    Id. ¶ 89; see also Rome Statute, supra note 25, at Preamble. ↩

72. 72.

    Afghanistan Decision, supra note 12, ¶ 89. ↩

73. 73.

    Afghanistan Decision, supra note 12, ¶ 91. ↩

74. 74.

    See, e.g., Param-Preet Singh, In Afghanistan, the ICC Abandons the Field, HRW (Apr. 23, 2019), available online; Press Release, Amnesty Int’l, Afghanistan: ICC Refuses to Authorize Investigation, Caving to US Threats (Apr. 12, 2019) [hereinafter Amnesty International Press Release], available online; Press Release, CICC, ICC Prosecutor Granted Leave to Appeal the Decision Rejecting Afghanistan Investigation (Sep. 18, 2019), available online; Press Release, ACLU, ACLU Comment on ICC Decision Not to Investigate U.S. for War Crimes in Afghanistan (Apr. 12, 2019) [hereinafter ACLU Press Release], available online. ↩

75. 75.

    Amnesty International Press Release, supra note 74. ↩

76. 76.

    ACLU Press Release, supra note 74. ↩

77. 77.

    Singh, supra note 74. ↩

78. 78.

    Alex Whiting, The ICC’s Afghanistan Decision: Bending to U.S. or Focusing Court on Successful Investigations?, Just Security (Apr. 12, 2019), available online. ↩

79. 79.

    Afghanistan Decision, supra note 12, ¶ 96. ↩

80. 80.

    See Whiting, supra note 34. ↩

81. 81.

    Afghanistan Decision, supra note 12, ¶ 91. ↩

82. 82.

    Id. ¶ 92. ↩

83. 83.

    Id. ↩

84. 84.

    Rome Statute, supra note 25, at Art. 29. ↩

85. 85.

    Thomas Weatherall, The Evolution of Hibernation at the International Criminal Court: How the World Misunderstood Prosecutor Bensouda’s Darfur Announcement, 20 ASIL Insights (May 13, 2016), available online. ↩

86. 86.

    Assembly of State Parties, ICC, Proposed Programme Budget for 2014 of the International Criminal Court, ICC-ASP /12/10, ¶ 229 (Jul. 31, 2013), available online. ↩

87. 87.

    Afghanistan Decision, supra note 12, ¶ 92. ↩

88. 88.

    Whiting, supra note 78. ↩

89. 89.

    Id.; See also Situation in the Republic of Kenya, ICC, available online (last visited Feb. 18, 2020). ↩

90. 90.

    Whiting, supra note 78; See also Situation in Republic of Burundi, ICC, available online (last visited Feb. 18, 2020); Situation in Georgia, ICC, available online (last visited Feb. 18, 2020). ↩

91. 91.

    Situation in Burundi, supra note 90 ↩

92. 92.

    See, e.g., Whiting, supra note 78; Michelle Nicols, ICC Complains of Lack of Cooperation, Wants more U.N. Support, Reuters, Oct. 17, 2012, available online. ↩

93. 93.

    Office of the Prosecutor, ICC, Policy Paper on Case Selection and Prioritization, ¶ 51 (Sep. 15, 2016), available online

    (Similar to much of the language in the Pre-Trial Chamber’s Afghanistan Decision, other factors in the policy paper included the quality and quantity of evidence, the availability of evidence, the office’s capacity to conduct investigations in a reasonable amount of time, and the potential to secure appearance of suspects before the court). ↩

94. 94.

    Id. ¶ 51. ↩

95. 95.

    Id. ↩

96. 96.

    Afghanistan Decision, supra note 12, ¶ 92. ↩

97. 97.

    Id. ¶ 93. ↩

98. 98.

    ACLU Press Release, supra note 76. ↩

99. 99.

    Id. ↩

100. 100.

     Afghanistan Decision, supra note 12, ¶ 94. ↩

101. 101.

     See Patryk Labuda, The ICC’s Evidence Problem, Völkerrechtsblog (Jan. 18, 2019), available online; see also Christian M. De Vos, Investigating from Afar: The ICC’s Evidence Problem, 26 Leiden J. Int’l L. 1009 (2013), available online. ↩

102. 102.

     Labuda, supra note 101. ↩

103. 103.

     Id. ↩

104. 104.

     See Afghanistan Decision, supra note 12, ¶¶ 92, 95. ↩

105. 105.

     Id. ¶ 95. ↩

106. 106.

     Id. ¶ 96. ↩

107. 107.

     Id. ¶¶ 87, 96. ↩

108. 108.

     Id. ¶ 96. ↩

109. 109.

     See Dapo Akande & Talita de Souza Dias, A New Approach to the “Interests of Justice” in the Ten Years Ahead of the Rome Statute: Why and When Should the Prosecutor use her Discretion under Article 53(1)(c) and 2(c) of the Statute to Defer Investigations or Prosecutions in Situations of Active Armed Conflict in Favor of Peace Negotiations?, ICC Forum (Jun. 28, 2018), available online. ↩

110. 110.

     See Strategic Plan, supra note 21, § 21. ↩