1. Relevant part of the Impugned Decision

20. In the Impugned Decision, the Pre-Trial Chamber found that it ‘must consider, on the exclusive basis of the information made available by the Prosecutor, whether the requirements set out in article 53(1)(a) to (c) are met’.Footnote ²⁹ It found that it was required not only to determine that ‘there is a reasonable basis to believe that crimes under the Court's jurisdiction have been committed’, but also to positively determine ‘that investigations would be in the interests of justice, including in relation to the gravity of the alleged conducts [sic], the potential victims’ interests and the likelihood that investigation [sic] be [sic] feasible and meaningful under the relevant circumstances’.Footnote ³⁰ It is primarily this finding that the Prosecutor impugns in her first ground of appeal.

2. Submissions of the parties

21. The Prosecutor submits that the Pre-Trial Chamber erred in law when it sought to make a positive determination that the initiation of an investigation into the situation in Afghanistan was in the interests of justice. The Prosecutor submits that articles 15(4) and 53(1)(c) require or permit ‘the Pre-Trial Chamber to determine whether it agrees with the Prosecutor that there are no substantial reasons to believe that an investigation would not serve the interests of justice’.Footnote ³¹ The Prosecutor's view is based on an understanding that the contours of the Pre-Trial Chamber's determination under article 15(4) of the Statute should logically reflect the contours of the Prosecutor's determination under article 15(3) of the Statute ‘given the clear link between those two assessments, both of which are based on the same reasonable basis to proceed standard’.Footnote ³² However, she submits that the Pre-Trial Chamber should ‘confine its assessment of the interests of justice to the contours of the assessment actually conducted by the Prosecutor’.Footnote ³³ If the Prosecutor's request for authorisation did not address any specific circumstances that could give rise to a negative finding as to the interests of justice, but the pre-trial chamber identifies any ‘self-evident or ostensible concern’ that the opening of an investigation would not be in the interests of justice, it should ‘revert to the Prosecutor […] with a view to requesting additional information concerning the Prosecutor's assessment’.Footnote ³⁴ In the absence of ‘any cause to doubt the Prosecutor's determination that there were no substantial reasons to believe that an investigation would not be in the interests of justice’, the Prosecutor submits that the Pre-Trial Chamber should have assented to her assessment under article 53(1)(c) of the Statute and authorised the investigation.Footnote ³⁵

22. The Victims, the OPCV, the Cross-border Victims, and Queen's University Belfast Human Rights Centre argue that the Pre-Trial Chamber may only review the Prosecutor's assessment of the ‘interests of justice’ when it is the basis for a decision not to initiate an investigation.Footnote ³⁶ LRV 1 submits that the Pre-Trial Chamber is not mandated to review the Prosecutor's decision to proceed with an investigation by applying an ‘interests of justice’ test or to conduct such an assessment proprio motu.Footnote ³⁷ LRV 2 and LRV 3 and the OPCV submit that the pre-trial chamber's review under article 15(4) of the Statute must be limited to the issues of jurisdiction and admissibility.Footnote ³⁸ Similarly, the Cross-border Victims emphasise that the Pre-Trial Chamber is required to apply a purely evidentiary test as to whether there is a reasonable basis for an investigation and to assess ‘whether there is any indication that the Court does not have jurisdiction over the case’.Footnote ³⁹

3. Determination by the Appeals Chamber

23. The Appeals Chamber notes that the Prosecutor's arguments under her first ground of appeal are predicated on the assumption that a pre-trial chamber's decision pursuant to article 15(4) of the Statute should take into account the ‘interests of justice’ factor of article 53(1)(c) of the Statute, but that the manner in which the Pre-Trial Chamber considered this factor in the present case was wrong. In contrast, the victims and certain amici curiae argue that the Pre-Trial Chamber should not have addressed the ‘interests of justice’ at all.Footnote ⁴⁰ Therefore, the first issue for the Appeals Chamber to determine is whether the ‘interests of justice’ factor under article 53(1)(c) of the Statute should be assessed in determining whether ‘there is a reasonable basis to proceed’ with an investigation under article 15(4) of the Statute.

24. The Appeals Chamber notes that, in the five decisions that pre-trial chambers have issued to date authorising investigations under article 15(4) of the Statute, they have considered all the factors set out in article 53(1) of the Statute, including, to a certain extent, the Prosecutor's interests of justice assessment under article 53(1)(c) of the Statute. The Pre-Trial Chamber (in a different composition) in the Situation in the Republic of Kenya was the first to issue a decision authorising an investigation and to explain its view on the link between articles 15(4) and 53(1) of the Statute.Footnote ⁴¹ It reasoned that pre-trial chambers are required to apply ‘the exact standard on the basis of which the Prosecutor arrived at his conclusion’ that there was a basis to proceed with an investigation.Footnote ⁴² It based this conclusion on: (i) the identical requirement in articles 15(3) and (4) and 53(1) of the Statute for a determination that there is a ‘reasonable basis to proceed’; (ii) the drafting history, which emphasises the link between articles 15 and 53; and (iii) article 15's purpose in providing ‘the Chamber with a supervisory role over the proprio motu initiative of the Prosecutor to proceed with an investigation’.Footnote ⁴³ Other pre-trial chambers followed the same approach in subsequent decisions.Footnote ⁴⁴ In the case at hand and in similar vein, the Pre-Trial Chamber found that it ‘must consider, on the exclusive basis of the information made available by the Prosecutor, whether the requirements set out in article 53(1)(a) to (c) are met’.Footnote ⁴⁵

25. This is the first time that this jurisprudence on the authorisation of an investigation under article 15(4) of the Statute is tested on appeal. For the reasons set out below, the Appeals Chamber finds that the Pre-Trial Chamber erred in its interpretation of article 15(4) of the Statute when it found itself bound to assess the factors under article 53(1) of the Statute.

26. The starting point for the Appeals Chamber's analysis is a consideration of the function of articles 15 and 53 of the Statute and the relationship between these provisions. During the drafting of the Rome Statute, these provisions were the subject of lengthy debate and the final text reflects a delicate balance regarding the Prosecutor's discretionary power to initiate investigations and the extent to which judicial review of these powers would be permitted.Footnote ⁴⁶

27. Article 15 appears within Part 2 of the Rome Statute titled ‘Jurisdiction, Admissibility and Applicable Law’. It builds upon article 13, which prescribes the three circumstances in which the Court may exercise its jurisdiction with respect to an article 5 crime, namely when: (i) a situation is referred to the Prosecutor by a State Party in accordance with article 14; (ii) a situation is referred to the Prosecutor by the Security Council; or (iii) the Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.

28. If a situation is referred by a State Party or the Security Council, article 53(1) of the Statute places, in principle, an obligation on the Prosecutor to open an investigation, by providing that ‘[t]he Prosecutor shall […] initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute’ (emphasis added). The Prosecutor is obliged to evaluate the seriousness of the information received and may seek additional information for this purpose.Footnote ⁴⁷ In deciding whether to initiate an investigation, article 53(1) obliges the Prosecutor to consider three factors: (i) whether there is a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed; (ii) whether the case is or would be admissible; and (iii) whether, ‘[t]aking 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’.

29. Article 53(1) of the Statute thus reflects an expectation that the Prosecutor will proceed to investigate referred situations, while allowing the Prosecutor not to proceed in the limited circumstances set out in article 53(1)(a) to (c) of the Statute. If the Prosecutor decides not to initiate an investigation under article 53(1) of the Statute, her decision is subject to certain notification requirements.Footnote ⁴⁸ Article 53(3) of the Statute envisages judicial control over the Prosecutor's decision not to investigate and aims at ensuring that the Prosecutor complies with her duty to investigate referred situations.Footnote ⁴⁹

30. In contrast, article 15 of the Statute, titled ‘Prosecutor’, sets out the procedure for the triggering of an investigation by the Prosecutor proprio motu, that is, on her own motion when a situation has not been referred to her. Article 15 recognises the discretionary nature of this power, providing in paragraph 1 that ‘the Prosecutor may initiate investigations proprio motu’ (emphasis added). In this context, it is for the Prosecutor to determine whether there is a reasonable basis to initiate an investigation proprio motu. If the Prosecutor concludes that there is no reasonable basis to proceed (a scenario not arising in this appeal), article 15(6) of the Statute requires her to inform those who provided the information of her conclusion.Footnote ⁵⁰ They may provide additional information to the Prosecutor who may reconsider the matter;Footnote ⁵¹ however, the legal framework does not envisage judicial review of the Prosecutor's conclusion.Footnote ⁵²

31. In the view of the Appeals Chamber, this is consistent with the discretionary nature of the power accorded to the Prosecutor under article 15 of the Statute. Indeed, it would be contrary to the very concept to suggest that a duty to investigate could be imposed by the pre-trial chamber in the absence of a request for authorisation of an investigation by the Prosecutor. The Appeals Chamber notes, in this regard, that a proposal to allow for notification to the pre-trial chamber and judicial review of decisions of the Prosecutor not to request authorisation of an investigation under article 15(6) of the Statute was rejected by the drafters.Footnote ⁵³ Indeed, the right vested in all States Parties and in the Security Council to refer situations would provide the appropriate remedy in such circumstance.

32. Therefore, under the procedure set out in article 15 of the Statute, the pre-trial chamber has a role in respect of the Prosecutor's exercise of discretionary power only if she determines that there is a basis to initiate an investigation.Footnote ⁵⁴ If the Prosecutor wishes to investigate a situation in the absence of a referral, the pre-trial chamber's authorisation is required, in accordance with article 15(4) of the Statute. If authorisation is granted, the Prosecutor may initiate an investigation directly. She is not required to determine for a second time under article 53(1) of the Statute that there is a reasonable basis to proceed with an investigation.Footnote ⁵⁵

33. On the basis of the foregoing, the Appeals Chamber considers that the content and placement of articles 15 and 53(1) of the Statute make it clear that these are separate provisions addressing the initiation of an investigation by the Prosecutor in two distinct contexts. Article 15 of the Statute governs the initiation of a proprio motu investigation, while article 53(1) concerns situations which are referred to the Prosecutor by a State Party or the Security Council.

34. The Appeals Chamber notes that article 15 of the Statute does not refer to the interests of justice or to article 53 of the Statute. Article 15(4) of the Statute requires a pre-trial chamber to determine only whether ‘there is a reasonable basis to proceed with an investigation’, and whether ‘the case appears to fall within the jurisdiction of the Court’. This provision does not identify additional considerations that the pre-trial chamber must take into account for the purpose of this determination. A plain reading of the provisions, therefore, indicates that, for the purposes of exercising judicial control at this early stage of the proceeding, the pre-trial chamber need only consider whether there is a reasonable factual basis to proceed with an investigation, in the sense of whether crimes have been committed, and whether potential case(s) arising from such investigation appear to fall within the Court's jurisdiction. This interpretation fully reflects the concern of the drafters in terms of the exercise of the proprio motu power noted above.Footnote ⁵⁶

35. While rule 48 of the Rules requires the Prosecutor to consider all the factors under article 53(1) of the Statute, including the interests of justice, in deciding whether to request authorisation of an investigation under article 15(3), there is no equivalent rule that would import these considerations for the purposes of a pre-trial chamber's determination under article 15(4) of the Statute. The rule was adopted after the Statute and, had the drafters intended to import these considerations into the pre- trial chamber authorisation process they would have included such a requirement in the rule. In the Appeals Chamber's view, this shows that the factors under article 53(1)(a) to (c) are not relevant for the purposes of the pre-trial chamber's decision.

36. The Appeals Chamber notes that the reference to a ‘reasonable basis to proceed’ in article 15(4) is echoed in article 15(3) of the Statute (regarding the Prosecutor's request for authorisation to initiate an investigation) and article 53(1) of the Statute (regarding the Prosecutor's decision to initiate an investigation). As indicated above, the Pre-Trial Chamber in the Kenya Authorisation Decision found, based in part on the repetition of this phrase in the two articles, that all factors of article 53(1)(a) to (c) must be considered by a pre-trial chamber when issuing a decision under article 15(4) of the Statute. However, this interpretation obscures the essential difference between the standard applicable to the assessment on the one hand and the subject-matter of the assessment on the other. In the view of the Appeals Chamber, the harmonisation of the standard between articles 15(3) and (4) and 53(1) of the Statute does not result in the harmonisation of the subject-matter of the Prosecutor's decision under articles 15(3) and 53(1) of the Statute and the Pre-Trial Chamber's assessment under article 15(4) of the Statute.

37. In light of the above, the Appeals Chamber considers that the ‘interests of justice’ factor set out in article 53(1)(c) of the Statute, while part of the Prosecutor's consideration under article 15(3) of the Statute as per rule 48 of the Rules, is not part of the pre-trial chamber's decision under article 15(4) of the Statute.

38. The Appeals Chamber considers that this interpretation of article 15(4) of the Statute is further supported by reference to the information that the Prosecutor is required to include in her request for authorisation of an investigation before the pre- trial chamber. Regulation 49(1) of the Regulations of the Court (the ‘Regulations’) provides that the Prosecutor must refer to the crimes committed and provide a statement of the facts alleged to provide a reasonable basis to believe that the crimes are being or have been committed, as well as a reasoned declaration that the listed crimes fall within the Court's jurisdiction. According to regulation 49(2) of the Regulations, the statement of facts must include the location of the crimes as precisely as possible, the time or time period of their commission and the persons involved or a description of the persons involved. Regulation 49(3) of the Regulations indicates that the Prosecutor must, if possible, append to the request a chronology of relevant events, maps showing relevant information and a glossary of relevant names of persons, places and institutions.

39. The Appeals Chamber notes that the information that the Prosecutor must provide at this stage is of a limited and very general nature. This is consistent with the preliminary stage of proceedings when the Prosecutor has not had the opportunity to gather evidence and ascertain the facts in the course of an investigation. The Prosecutor is not required to present evidence to support her request and is not required to present information regarding her assessment of complementarity with respect to the cases or potential cases. Similarly, the Prosecutor is not required to provide her reasoning (if any) or justify her conclusion regarding the interests of justice under article 53(1)(c) of the Statute. Indeed, according to regulation 49 of the Regulations, the Prosecutor is required only to provide a factual description of the crimes allegedly committed and a declaration that they fall within the jurisdiction of the Court. This further supports the finding that the pre-trial chamber, under article 15(4) of the Statute, is limited to determining whether there is a reasonable factual basis to proceed with an investigation and whether the potential case(s) arising from such investigation would appear to fall within the Court's jurisdiction.

40. Additionally, the Appeals Chamber notes that, if a pre-trial chamber were expected to apply all the factors under article 53(1)(a) to (c) of the Statute, this would include an assessment of the admissibility of potential case(s) under article 53(1)(b) of the Statute. In the Appeals Chamber's view, the value of a judicial assessment of admissibility at this stage would be limited. The Appeals Chamber notes that, in the context of article 15 proceedings, there is no obligation for the Prosecutor to notify States of her intention to seek authorisation for an investigation and the participation of States is not provided for in the applicable procedural framework. This means that the pre-trial chamber would have to rely on the Prosecutor, who considers that the case(s) would be admissible, to provide information that would allow it to form a view on issues of admissibility. Therefore, in the view of the Appeals Chamber, it is sufficient for the purposes of the article 15 procedure that the Prosecutor considers the admissibility of potential cases in determining whether she should request authorisation for an investigation under article 15(3) of the Statute; there is no basis for the pre-trial chamber to consider that question as well.

41. The Appeals Chamber considers that the drafting history supports its view that the pre-trial chamber's determination under article 15(4) should not incorporate issues of admissibility. In this regard, it notes that, during the Rome Conference, a provision was deleted from draft article 15 that would have expressly required the pre-trial chamber to take issues of admissibility into account in determining whether to authorise an investigation.Footnote ⁵⁷ Similarly, a proposal during the drafting of the Rules to incorporate admissibility and jurisdictional challenges into the authorisation procedure was rejected by the drafters, inter alia, due to concerns that it would exceed the oversight role of the pre-trial chamber under article 15 and that it would not be feasible to resolve these issues at such an early stage of proceedings.Footnote ⁵⁸

42. The Appeals Chamber considers that specific procedural mechanisms based on the full participation of relevant parties, participants and States are provided for elsewhere in the legal framework ensuring that the Court pursues investigations and prosecutions only in relation to admissible cases.Footnote ⁵⁹ In particular, under article 18, as soon as the Prosecutor initiates an investigation pursuant to article 15 of the Statute, she must notify all States Parties and States which, based on available information, would normally exercise jurisdiction over the crimes concerned. Pursuant to that article, within one month of receipt of notification a State may inform the Court of its own investigations and, at the request of the State, the Prosecutor must defer to the State's investigation ‘unless the Pre-Trial Chamber, on the application of the Prosecutor, decides to authorize the investigation’. As highlighted by the Prosecutor, in this context, an interested State may present detailed information with respect to any question of admissibility allowing for an informed and meaningful assessment by a pre-trial chamber at this stage.Footnote ⁶⁰ The existence of this procedure, which allows the pre-trial chamber to consider admissibility at a stage designed specifically for that purpose immediately following upon the authorisation of an investigation, further supports the Appeals Chamber's interpretation of article 15(4) of the Statute.

43. The Appeals Chamber notes that, during the hearing, Afghanistan submitted that there was no need to authorise an investigation at this stage ‘in light of the investigations being undertaken by Afghanistan under its new laws and new criminal justice bodies and mechanisms put in place precisely to investigate the same crimes that could come before the ICC’.Footnote ⁶¹ The Appeals Chamber considers that, as outlined above, the appropriate procedural mechanisms for consideration of such arguments by the pre-trial chamber (and potentially the Appeals Chamber) are provided by article 18 of the Statute, which allows Afghanistan to request deferral of the Prosecutor's investigation and, if necessary, allows for a preliminary ruling to be made regarding admissibility on the basis of arguments from the Prosecutor and Afghanistan.

44. Arguments were also advanced during the hearing that certain agreements entered into between the United States and Afghanistan affect the jurisdiction of the Court and should be a factor in assessing the authorisation of the investigation.Footnote ⁶² The Appeals Chamber is of the view that the effect of these agreements is not a matter for consideration in relation to the authorisation of an investigation under the statutory scheme. As highlighted by the Prosecutor and LRV 1, article 19 allows States to raise challenges to the jurisdiction of the Court, while articles 97 and 98 include safeguards with respect to pre-existing treaty obligations and other international obligations that may affect the execution of requests under Part 9 of the Statute.Footnote ⁶³ Thus, these issues may be raised by interested States should the circumstances require, but the arguments are not pertinent to the issue of the authorisation of an investigation.

45. The Appeals Chamber concludes that a plain reading of the relevant legal provisions in their context suggests that the pre-trial chamber under article 15(4) of the Statute is only required to assess the information contained in the Prosecutor's request to determine whether there is a reasonable factual basis to proceed with an investigation, in the sense of whether crimes have been committed, and whether the potential case(s) arising from such investigation would appear to fall within the Court's jurisdiction. In this regard, the Appeals Chamber notes that the process under paragraphs 3–5 of article 15 is not a review of the Prosecutor's determination. Rather the Prosecutor seeks the pre-trial chamber's authorisation to proceed and that authorisation should be based on the application by the pre-trial chamber of the separate factors specified in paragraph 4, to the Prosecutor's application. Thus the pre-trial chamber is required to reach its own determination under article 15(4) of the Statute as to whether there is a reasonable basis to proceed with an investigation. It is not called to review the Prosecutor's analysis of the factors under article 53(1)(a) to (c) of the Statute.

46. Based on the foregoing, the Appeals Chamber finds that the Pre-Trial Chamber erred in deciding that ‘an investigation into the situation in Afghanistan at this stage would not serve the interests of justice’. It finds that the Pre-Trial Chamber's decision under article 15(4) of the Statute should have addressed only whether there is a reasonable factual basis for the Prosecutor to proceed with an investigation, in the sense of whether crimes have been committed, and whether the potential case(s) arising from such investigation would appear to fall within the Court's jurisdiction.

1. Whether the scope of authorisation is limited to the incidents mentioned in the Request and those closely linked thereto

57. The Appeals Chamber notes that, to support her request for authorisation of an investigation into the situation in Afghanistan, the Prosecutor presented information relating to numerous incidents, which, in her view, established a reasonable basis that crimes under the jurisdiction of the Court have been committed.Footnote ⁷⁷ The Prosecutor clarified, however, that she did not seek authorisation to investigate only in respect of these alleged crimes, but that she ‘should be able to conduct an investigation into any other alleged crimes that fall within the scope of the authorised situation’.Footnote ⁷⁸

58. The Pre-Trial Chamber, in contrast, emphasised that, if it were to authorise an investigation, the Prosecutor could only investigate incidents mentioned in the Request and authorised by the Chamber, ‘as well as those comprised within the authorisation's geographical, temporal, and contextual scope, or closely linked to it’.Footnote ⁷⁹ The Pre-Trial Chamber stated that the closeness of the link between the incidents in respect of which the investigation is authorised and other incidents must be ‘assessed taking into account the temporal, territorial and material parameters of the authorisation as granted’ and that ‘[p]roximity in time and/or in location, identity of or connection between alleged perpetrators, identity of pattern or suitability to be considered as expression of the same policy or programme, are […] among the factors allowing a Chamber to establish such connection’.Footnote ⁸⁰ The Pre-Trial Chamber went on to find that it was:

59. The Appeals Chamber recalls that article 15(2) and (3) require the Prosecutor to analyse the seriousness of information received on crimes within the jurisdiction of the Court and to submit a request for authorisation of an investigation to the pre-trial chamber if she concludes that there is a reasonable basis to proceed. At this early stage, the Prosecutor's investigative powers are limited and, barring exceptional circumstances, she will not be in a position to identify exhaustively or with great specificity each incident, crime or perpetrator that could be subject to investigation. Also, evidently she will not be able to reference crimes which may occur after the request for authorisation. Nevertheless, the examples of alleged crimes presented by the Prosecutor in her request under article 15(3) of the Statute should be sufficient to define in broad terms the contours of the situation that she wishes to investigate.

60. If an investigation is authorised by the pre-trial chamber, the full range of investigative powers under the Statute are available to the Prosecutor, but she is also subject to certain duties that affect the scope of her investigation. She is mandated, under article 54(1)(a) of the Statute to ‘extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and, in doing so, investigate incriminating and exonerating circumstances equally’. Under article 54(1)(b) of the Statute, she is required to ‘[t]ake appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court’. The Prosecutor's duty, according to article 54(1) of the Statute, is ‘to establish the truth’. Therefore, in order to obtain a full picture of the relevant facts, their potential legal characterisation as specific crimes under the jurisdiction of the Court, and the responsibility of the various actors that may be involved, the Prosecutor must carry out an investigation into the situation as a whole.

61. In these circumstances, the Appeals Chamber considers that restricting the authorised investigation to the factual information obtained during the preliminary examination would erroneously inhibit the Prosecutor's truth-seeking function. Such a restriction is also unnecessary to fulfil the purpose of article 15(4) of the Statute in ensuring that the Prosecutor does not embark on a frivolous or politically motivated investigation in that she remains restricted in her investigation to the contours of the situation authorised by the pre-trial chamber. Therefore, the Appeals Chamber considers that authorisation for an investigation should not be restricted to the incidents specifically mentioned in the Prosecutor's Request and incidents that are ‘closely linked’ to those incidents in the manner described by the Pre-Trial Chamber.

62. In relation to the Afghanistan situation, the Appeals Chamber notes that the Prosecutor presented information regarding the alleged large scale commission of multiple crimes against humanity and war crimes by various armed groups and actors involved in the conflict, which began prior to the entry into force of the Rome Statute on 17 July 2002 and continues to the present day. This information was accepted by the Pre-Trial Chamber as providing a reasonable basis to believe that the alleged events occurred and that they may constitute crimes within the jurisdiction of the Court.Footnote ⁸² Given the scope of the information presented by the Prosecutor and accepted by the Pre-Trial Chamber, the Appeals Chamber considers that the requirements of article 15(4) of the Statute would be met by granting the authorisation in the terms requested by the Prosecutor, which sufficiently defines the parameters of the situation.

63. The Appeals Chamber considers that the alternative proposed by the Pre-Trial Chamber – that investigation of incidents not closely related to those authorised would be possible if they were the subject of a new request for authorisation under article 15 – is unworkable in practice in the context of an investigation into large-scale crimes of the type proposed by the Prosecutor.Footnote ⁸³ First, the Appeals Chamber is of the view that it would be impossible for the Prosecutor to determine in the course of investigating, which incidents could safely be regarded as ‘closely linked’ to those authorised and which would require the submission of a new request for authorisation. As a result, the Prosecutor would be required to submit repeated and sometimes unnecessary requests for authorisation of investigation as new facts are uncovered. Second, the Appeals Chamber considers that such continuous monitoring of the scope of the Prosecutor's investigation by the pre-trial chamber is contrary to the statutory scheme regulating the respective functions and powers of these two organs with respect to investigations. In this regard, the Appeals Chamber notes that article 42(1) recognises the independence of the Prosecutor and her responsibility for the conduct of investigations, while articles 56 and 57 of the Statute identify specific functions that may be exercised by the pre-trial chamber during the investigation. Third, the implications of the limited scope of authorisation for the questioning of witnesses and collection of evidence are unclear. In particular, the question arises as to whether the Prosecutor would be expected to refrain from collecting information and evidence on other incidents that are not closely linked to those authorised pending the grant of a new authorisation. If so, the delay in pursuing investigative leads and the inefficiencies in collecting evidence would undoubtedly compromise the Prosecutor's investigation. The Appeals Chamber considers that such cumbersome and unwieldy procedures are not required by the Statute and are likely to have a significant detrimental effect on the conduct of investigations.

64. In view of foregoing, the Appeals Chamber finds that the Pre-Trial Chamber erred in finding that the scope of any authorisation granted would be limited to the incidents mentioned in the Request and those closely linked thereto.

2. Whether certain acts committed outside Afghanistan would amount to war crimes if the victims of these acts were captured outside Afghanistan

65. In the Request, the Prosecutor provided information relating to alleged war crimes amounting to serious violations of article 3 common to the four Geneva Conventions (‘Common Article 3’) of torture and cruel treatment, outrages upon personal dignity, and rape and other forms of sexual violence,Footnote ⁸⁴ committed as part of a policy,Footnote ⁸⁵ by members of the CIA in a number of detention facilities in Afghanistan,Footnote ⁸⁶ as well as in detention facilities located on the territory of other States Parties.Footnote ⁸⁷ The Prosecutor presented information relating to individuals who were allegedly mistreated by the CIA as part of this program.Footnote ⁸⁸ Some of these individuals were allegedly captured outside Afghanistan;Footnote ⁸⁹ at least one individual was captured on the territory of Afghanistan, while the location of capture of the remaining individual was unclear.Footnote ⁹⁰ In all instances, the mistreatment was alleged to have taken place on the territory of States Parties.Footnote ⁹¹

66. The Prosecutor described the CIA detention program as ‘global in nature’ and indicated that it ‘included persons with no direct connection to the conflict in Afghanistan, such as persons detained in connection with other armed conflicts or otherwise suspected of planning attacks against the United States’.Footnote ⁹² However, for the purpose of the Request, the Prosecutor referred only to crimes allegedly committed on the territory of States Parties against individuals that she considered to have a nexus to the armed conflict in Afghanistan.Footnote ⁹³ The Prosecutor specified that she had included alleged crimes committed against individuals who were suspected by the CIA to be members of the Taliban and/or Al Qaeda, or of cooperating with those groups, or having ‘links with or information about Al-Qaeda “core” or “central” group, allegedly responsible for the 11 September 2001 attacks’.Footnote ⁹⁴ She submitted that the ‘detainees were interrogated for their (actual or perceived) knowledge of Taliban and Al Qaeda operations and planned attacks, locations of Taliban and Al Qaeda leaders or training camps, and other intelligence information about each organisation’.Footnote ⁹⁵ Conversely, she indicated that she had excluded the reported mistreatment of persons who were ‘allegedly linked to other “franchise” Al Qaeda groups or other terrorist organisations’.

67. The Prosecutor explained her view of the nexus of the alleged crimes to the conflict in Afghanistan in the following terms:

68. The Appeals Chamber notes that the nexus requirement for war crimes is recognised in the Elements of Crimes. The penultimate element of each of the war crimes under the Court's jurisdiction requires that:

69. It has been observed that the function of the nexus requirement is to differentiate ‘war crimes, e.g. the killing or rape of a prisoner of war, from “ordinary” or “common” crimes under domestic law, such as the common crime of murder and rape’.Footnote ⁹⁷ The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (the ‘ICTY’) has found in the Kunarac case:

70. The Appeals Chamber endorsed this approach in the Ntaganda case, while also noting that ‘any undue expansion of the reach of the law of war crimes can be effectively prevented by a rigorous application of the nexus requirement’.Footnote ⁹⁹

71. In the Impugned Decision, the Pre-Trial Chamber found that the alleged incidents which the Prosecutor attributed to the CIA fell outside the Court's jurisdiction ‘since these are said to have occurred against persons captured elsewhere than Afghanistan’.Footnote ¹⁰⁰ The Pre-Trial Chamber considered that the acts in question lacked the nexus with an internal armed conflict required to trigger the application of international humanitarian law.Footnote ¹⁰¹ The Pre-Trial Chamber noted that the ‘two requirements “in the context of” and “associated with” are clearly not in the alternative but cumulative’.Footnote ¹⁰² The Pre-Trial Chamber supported its view by reference to the chapeau of Common Article 3, stating that ‘[b]oth the wording and the spirit of common article 3 to the Geneva Conventions are univocal in confining its territorial scope within the borders of the State where the hostilities are actually occurring’.Footnote ¹⁰³

72. For the reasons that follow, the Appeals Chamber considers that the Pre-Trial Chamber's approach was incorrect. Common Article 3 reads, in full, as follows:

73. While it is true that the chapeau of Common Article 3 refers to an ‘armed conflict not of an international character occurring in the territory of one of the High Contracting Parties’, this phrase does not have the function ascribed to it by the Pre- Trial Chamber, namely to limit the applicability of the provision to the State on the territory of which the armed conflict occurs. Rather, in the view of the Appeals Chamber, it simply describes the circumstances under which Common Article 3 applies: there must be an armed conflict not of an international character in one of the States Parties to the Geneva Convention. As highlighted by the amicus curiae submission of Professor Rona, this view finds support in the position of the International Committee of the Red Cross (the ‘ICRC’), which suggests that this phrase does not have the effect of restricting the application of Common Article 3 to the territory of the State in which the armed conflict occurs, but rather was aimed at ensuring that the provision would bind only those States that had ratified the Geneva Conventions.Footnote ¹⁰⁴ The ICRC indicates that this phrase ‘has lost its importance in practice’ as any armed conflict not of an international character ‘cannot but take place on the territory of one of the Parties to the Convention’ given the universal ratification of the Geneva Conventions.Footnote ¹⁰⁵ Indeed, all States relevant to the allegations in question – Afghanistan, Poland, Romania and Lithuania, as well as the United States – are parties to the four Geneva Conventions.

74. The remaining text of Common Article 3 does not expressly limit the applicability of Common Article 3 to the territory of the State where the conflict occurs either. To the contrary, the minimum provisions set out in sub-paragraph (1) stipulate that those falling under its protection ‘shall in all circumstances be treated humanely’ and that certain acts against these persons ‘shall remain prohibited at any time and in any place whatsoever’ (emphases added). Therefore, contrary to the Pre- Trial Chamber's finding, the text of Common Article 3 read in its totality does not suggest that the requisite nexus with the armed conflict in Afghanistan cannot exist if the criminal conduct occurred outside Afghanistan and the victim was not captured in Afghanistan. Importantly, such a conclusion would also be contrary to the purpose of Common Article 3, which is to provide minimum guarantees in relation to armed conflicts.Footnote ¹⁰⁶

75. The Appeals Chamber notes in this context that the ICRC has recognised that ‘an existing non-international armed conflict may spill over from the territory of the State in which it began into the territory of a neighbouring State not party to the conflict’.Footnote ¹⁰⁷ The ICRC has also noted that:

76. Thus, in the view of the Appeals Chamber, it is incorrect to assume that, merely because the alleged capture of the victim did not take place in Afghanistan and the alleged criminal act also occurred outside Afghanistan, the conduct cannot possibly have taken place in the context of, and have been associated with, the armed conflict in that State. Rather, a careful analysis of the circumstances of each case will need to be carried out to establish whether there is a sufficient nexus. The place of capture of the alleged victim may be a relevant factor for this analysis, but it does not settle the matter.

77. In sum, the Appeals Chamber considers that the Pre-Trial Chamber's finding regarding the nexus requirement was incorrect. There is no reason to limit the Prosecutor's investigation in the manner envisaged by the Pre-Trial Chamber.

78. This is not to say that the Appeals Chamber has determined that any or all of the incidents listed in Annex 2C to the Request would necessarily have the requisite nexus to qualify as war crimes. When the relevant circumstances have been established in the course of an investigation into the situation as whole, the Prosecutor will be in a position to evaluate the applicable law, the significance of the fact that capture is alleged to have taken place outside Afghanistan and whether one or more individual cases fall within the Court's jurisdiction. In the event that the Prosecutor proceeds with a prosecution on a questionable jurisdictional basis, article 19(2) of the Statute provides that a challenge may be raised by an accused or person for whom a warrant of arrest or summons to appear has been issued, or a State with jurisdiction or from which acceptance of jurisdiction is required. The Court also has an obligation to satisfy itself that it has jurisdiction in any case brought before it pursuant to article 19(1) of the Statute. In this context, the Appeals Chamber finds that it is premature and unnecessary to resolve specific and detailed jurisdictional issues on an incident- by-incident basis for the purposes of authorising the investigation into the situation in Afghanistan.