Abstract
The Office of the Prosecutor’s preliminary examination into the Situation in Afghanistan came to an end with the Appeals Chamber approving its request for authorization of an investigation. In doing so it overturned the decision of the Pre-Trial Chamber, which for the first time in the International Criminal Court’s history had invoked the criterion of ‘interests of justice’ to deny the request. Both decisions raised questions as to the scope of review of the Pre-Trial Chamber under Article 15 and its relationship with Article 53 of the Rome Statute. This article delves into some of these questions. First, it looks into whether the Appeals Chamber was correct to hold that the Pre-Trial Chamber is not supposed to review the factors under Article 53(1). It answers this question in the negative, arguing that the Appeals Chamber’s decision goes against the text of the Rome Statute, and the International Criminal Court’s past practice. Secondly, it analyses whether the Pre-Trial Chamber can assess whether or not an investigation serves the ‘interests of justice’, even if the Prosecutor has not made an explicit finding in this regard. It argues that the context and purpose of Article 15 envisages a genuine and meaningful examination of the Prosecutor’s request, which includes the ability to evaluate, suo motu, the applicability of the ‘interests of justice’ criterion. Lastly, the article addresses whether the factors that were considered by the Pre-Trial Chamber in its Afghanistan Article 15 Decision were suited to its judicial role. It proposes a methodology for the Pre-Trial Chambers to adopt while exercising their powers under Article 15, which allows for both prosecutorial discretion and a meaningful judicial review. The article attempts to put forth a renewed understanding of the Rome Statute and argues that the Pre-Trial Chamber has a wider power of review under Article 15 than has been hitherto exercised, which, if exercised reasonably, can further the cause of international criminal justice.
