Thread by @kevinjonheller

The OTP has filed its appellate brief in the #Afghanistan situation. It cites a few scholars, including me, Dapo Akande, @tdesouzadias, and others. icc-cpi.int/CourtRecords/C… #ICC

@tdesouzadias 2. Interestingly, the OTP is trying to get the Appeals Chamber to consider the scope of the investigation — the rejected third issue — by folding it into the second issue, whether the PTC correctly interpreted the “interests of justice.” See para. 8. Smart!

@tdesouzadias 3. The OTP rightly emphasises — echoing my first post on the PTC’s decision — that it is also trying to investigate Afghan forces and the Taliban, making the PTC’s single-minded focus on whether it is feasible to investigate the US erroneous (para. 8).

@tdesouzadias 4. Good stuff: the OTP argues that the AC should simply authorise the investigation, not send the matter back to the PTC, because, absent its errors, the PTC made all the findings necessary for the investigation to go forward (para. 11).

@tdesouzadias 5. The OTP rightly notes that there is no support in Art. 53(1)(c) of the Rome Statute for the PTC’s insistence that a proprio motu investigation must be in the interests of justice (para. 15). Art. 53(1)(c) does not require a positive determination in that regard.

@tdesouzadias 6. The OTP correctly points out that the effect of the PTC’s approach to the interests of justice will require the OTP to investigate “easier” situations, incentivising states to frustrate its preliminary examinations (para. 16).

@tdesouzadias 7. Excellent: the OTP notes that the PTC’s desire to micromanage its investigations by insisting that they be feasible unjustifiably intrudes on prosecutorial discretion (para. 16).

@tdesouzadias 8. Interesting: the OTP acknowledges that the PTC can review its assessment that there are no substantial reasons to believe an investigation would not be in the interests of justice (para. 18). That would seem to be in line with my position, not @dovjacobs’.

@tdesouzadias @dovjacobs 9. Also correctly, the OTP insists that the PTC’s review of its negative assessment cannot be de novo, but must give some deference to the OTP’s reasoning (para. 18).

@tdesouzadias @dovjacobs 10. The OTP points out that the drafters of the Rome Statute considered but rejected a version of Art. 53 that would have required the OTP to make a positive determination that an investigation would be in the interests of justice (para. 26).

@tdesouzadias @dovjacobs 11. OTP rightly points out that, in reviewing its negative assessment, the PTC cannot "exceed the legal or factual scope of the Prosecutor’s assessment, and on that basis unilaterally decline to authorise a requested investigation” (para. 36).

@tdesouzadias @dovjacobs 12. Not sure the OTP’s insistence on the presumption of investigation in the Rome Statute (paras. 48, 49) is such a good idea. It seems to play into the PTC’s hands in Comoros, where the PTC is trying to define gravity in a way that requires the OTP to open an investigation.

@tdesouzadias @dovjacobs 13. The OTP rightly emphasises that, in assessing the interests of justice, the PTC *cannot* second-guess how the OTP allocates its resources between investigations (para. 62).

@tdesouzadias @dovjacobs 14. The OTP argues, convincingly, that if the PTC wanted to consider interests-of-justice factors it did not rely on, the PTC had an obligation to ask the OTP to make submissions on those factors (paras. 66-68). I made that point in my posts.

@tdesouzadias @dovjacobs 15. The OTP points out the PTC’s erroneous temporal and geographic limitations on the scope of the investigation (rejected third issue) necessarily distorted its assessment of the interests of justice (second issue), particularly re: the feasibility of investigation (para. 75).

@tdesouzadias @dovjacobs 16. The OTP notes that limiting the investigation to incidents included in the authorization request effectively collapses the distiction between situations and cases — and effectively gives the PTC final say over which cases the OTP can bring (para. 84). Smart argument.

17. Not completely convinced by the OTP insistence that the scope of UNSC referrals, state referrals, and proprio motu investigations must be the same (para. 85). Drafters obviously wanted more judicial control over the latter.

18. Superb point: proving more factually and legally complicated crimes requires investigation, so requiring OTP to “prove” reasonable basis at the authorization stage makes little sense and will limit OTP’s ability to pursue those (usually more serious) crimes (para. 87).

19. Echoing my post, the OTP effectively shows that no previous PTC has ever imposed similar limitations on what the OTP can investigate post-authorization (para. 88).

20. Great to see the OTP directly challenge the PTC’s claim there is no nexus between the crimes in CIA blacksites and the NIAC in Afghanistan (paras. 96-110). The PTC is wrong. See @GaborRona1 here: opiniojuris.org/2019/04/15/mor…

@GaborRona1 21. I can’t do it justice in tweets, but the OTP’s argument concerning the nexus between the blacksites and the Afghanistan NIAC is extremely sophisticated and very persuasive. Remarkable citation practice, as well!

@GaborRona1 22. OTP rightly notes that although the passage of time might be relevant to a specific prosecution, it should not be taken into account re: authorizing an investigation — esp. in light of previous ICTs, such as ECCC, which opened long after the crimes were committed (para. 115).

@GaborRona1 23. OTP says what the PTC wouldn’t regarding state cooperation: the PTC was thinking specifically about the US (para. 125). Really silly the PTC didn’t just come out and admit it.

@GaborRona1 24. The OTP effectively dismantles the PTC’s bizarre argument that an investigation is not in the interests of victims, highlighting (as the PTC itself did!) that the victims are overwhelmingly in favour of the investigation (para. 158).

@GaborRona1 25. Interesting: the OTP argues that an investigation does not have to lead to convictions in order to be in the interests of victims (paras. 160, 161 ). I agree, but a brave position to take nonetheless!

@GaborRona1 26. Here endeth the thread. The bottom line: this is a superb brief by the OTP. I fully expect the AC to agree with it. The big question, I think, is this: will the AC send the authorization request back to the PTC, or simply authorize the investigation?