Authored By: Gulici Karaaslan
University of Exeter
I Introduction
The authorisation of the International Criminal Court’s investigation into the Situation in the Islamic Republic of Afghanistan represents one of the most consequential developments in international criminal accountability in recent decades. The Appeals Chamber’s decision of 5 March 2020 reversed a highly controversial ruling by Pre-Trial Chamber II, which had declined to authorise the investigation on the basis that doing so would not serve the interests of justice. The decision is landmark for two discrete reasons: it fundamentally clarified the proper scope and limits of the interests of justice exception under Article 53 of the Rome Statute,1 and it opened the institutional pathway for accountability proceedings regarding the systematic crimes committed against women and girls including gender-based persecution and sexual violence by the Taliban and other actors in Afghanistan. Following the Taliban’s reassumption of control in August 2021 and the subsequent legislative dismantling of Afghan women’s rights, the investigation has assumed heightened urgency, with Prosecutor Karim Khan publicly refocusing resources on Taliban gender crimes in 2022.
Facts of the Case
Afghanistan ratified the Rome Statute on 10 February 2003, conferring jurisdiction on the ICC over crimes committed on Afghan territory or by Afghan nationals from that date. The Office of the Prosecutor commenced a preliminary examination of the Situation in Afghanistan in 2007. Following a decade of evidence-gathering, the Prosecutor then Fatou Bensouda filed a formal request for judicial authorisation of a proprio motu investigation pursuant to Article 15(3) of the Rome Statute in November 2017.2
The Prosecutor sought authorisation to investigate war crimes and crimes against humanity allegedly committed by three categories of actors: Taliban forces and affiliated armed groups; Afghan national security forces; and United States military personnel and Central Intelligence Agency operatives in connection with detention and interrogation practices conducted primarily between 2003 and 2014. The Taliban-related conduct was of particular gravity and included systematic attacks on the civilian population targeting in particular women teachers, female students, and persons affiliated with the government as well as murder, imprisonment, torture, sexual violence, and the destruction of educational infrastructure. These acts were alleged to constitute crimes against humanity under Article 7 of the Rome Statute, including persecution on gender and political grounds under Article 7(1)(h), and war crimes under Article 8.3
On 12 April 2019, Pre-Trial Chamber II declined to authorise the investigation.4 The Chamber did not dispute that the jurisdictional requirements were satisfied or that there was a reasonable basis to believe the alleged crimes had occurred. Instead, it exercised a discretionary power under Article 53(1)(c) of the Rome Statute — which permits the Prosecutor to decline investigation where it would not serve the interests of justice and concluded that the prospects for successful investigation and prosecution were too poor to justify proceeding. The Chamber cited changed political circumstances since 2017, anticipated lack of State cooperation from Afghanistan and the United States, and the risk that accountability proceedings might undermine fragile peace negotiations. The Prosecutor, supported by victims’ representatives, appealed this decision to the Appeals Chamber.
III. Legal Issues
The Appeals Chamber was called upon to resolve the following questions of law:
Issue 1: Whether Pre-Trial Chamber II erred in law by treating the interests of justice under Article 53(1)(c) of the Rome Statute as a positive threshold that the Prosecutor must affirmatively establish, rather than as a narrow exception to a presumption in favour of investigation.
Issue 2: Whether the Pre-Trial Chamber exceeded its supervisory function under Article 15(4) of the Rome Statute by conducting an independent substantive assessment of the interests of justice, rather than reviewing the Prosecutor’s own evaluation for legal error or abuse of discretion.
Issue 3: Whether reliance on political considerations including anticipated non-cooperation by States and the perceived risk to ongoing peace negotiations constituted a legally cognisable basis for a finding against the interests of justice under Article 53(1)(c).
Arguments Presented
4.1 Prosecutor’s Arguments (Appellant)
The Prosecutor submitted that the Pre-Trial Chamber had fundamentally mischaracterised the legal nature of Article 53(1)(c). On the Prosecutor’s analysis, the Rome Statute is premised on a strong presumption in favour of investigation and prosecution: the interests of justice provision constitutes a narrow, exceptional derogation from this presumption, not an independent gateway through which political or pragmatic assessments may be admitted. The Prosecutor contended that adverse political conditions, anticipated non-cooperation, and pessimistic assessments of prosecutorial feasibility were legally irrelevant to the interests of justice enquiry. To permit refusal on such grounds would, she argued, transform the ICC into a court that functions only with the consent of the powerful precisely the condition the Rome Statute was designed to transcend. The Prosecutor further emphasised the interests of the victims, predominantly women and girls subjected to systematic Taliban gender persecution, who had a legally cognisable stake in the investigation proceeding.5
4.2 Arguments of Participating States and Victims’ Representatives
The majority of victims’ representatives and participating States supported the appeal. Victims’ legal representatives advanced a particularly compelling submission: that the Pre-Trial Chamber’s reasoning had effectively subordinated the documented suffering of Afghan women to speculative geopolitical calculations, in direct contravention of the victim-centred object and purpose of the Rome Statute. Several victims contended that the systematic targeting of women as a class on grounds of gender and political affiliation constituted persecution of the highest order of gravity under Article 7(1)(h), and that the presumption in favour of investigation should be at its most robust precisely in such circumstances.6
Court’s Reasoning and Analysis
The Appeals Chamber unanimously reversed the decision of Pre-Trial Chamber II. Its reasoning proceeded on three interconnected grounds.
First, the Court undertook a careful structural analysis of Article 15 of the Rome Statute, which governs the Prosecutor’s proprio motu investigative powers. The Appeals Chamber held that Article 15(4) which requires the Pre-Trial Chamber to authorise an investigation upon finding a reasonable basis to proceed within the Court’s jurisdiction confers a supervisory rather than an independent evaluative function. The Chamber’s role at this stage is to review whether the Prosecutor’s assessment is vitiated by legal error or an abuse of discretion; it is not entitled to conduct a fresh, parallel interests of justice assessment of its own. The Pre-Trial Chamber had exceeded this institutional role by substituting its own judgment for that of the Prosecutor on a matter expressly committed to prosecutorial discretion.7
Second, the Appeals Chamber provided the most authoritative interpretation to date of the interests of justice provision in Article 53(1)(c). The Court held that this provision operates as a narrow exception to a strong, institutional presumption that investigation and prosecution of the crimes within the Court’s jurisdiction serves the interests of justice. Critically, the Appeals Chamber held that political considerations including the prospect of State non-cooperation or the risk of disrupting diplomatic processes are not legitimate factors in the interests of justice assessment. To hold otherwise, the Court reasoned, would permit states to effectively veto accountability proceedings through the strategic withholding of cooperation, fundamentally undermining the independence and credibility of the institution.8
Third, the Court addressed the nature and gravity of the crimes at issue. The Appeals Chamber affirmed that the alleged Taliban conduct including the systematic targeting of women and girls on grounds of gender and political affiliation, the destruction of schools, and the widespread use of sexual violence as a tool of governance represented crimes of the utmost gravity within the Rome Statute framework. The Court implicitly endorsed the characterisation of these acts as gender persecution under Article 7(1)(h), noting their systematic and widespread character. The Court’s endorsement of this characterisation has important doctrinal significance: it affirms that sustained legislative and social oppression targeting women as a class may constitute crimes against humanity where the requisite scale, organisation, and intent can be established.9
The Appeals Chamber expressly declined to address the question of US conduct in detail, emphasising that its function was to correct the legal error in the Pre-Trial Chamber’s reasoning rather than to adjudicate the substantive merits of potential prosecutions.
Judgment and Ratio Decidendi
The Appeals Chamber unanimously reversed the decision of Pre-Trial Chamber II and authorised the Prosecutor to open an investigation into the Situation in the Islamic Republic of Afghanistan. The investigation extended to crimes allegedly committed by Taliban forces, Afghan national security forces, and US personnel from 1 May 2003 Afghanistan’s date of ratification of the Rome Statute onwards. No provisional measures or specific directions were issued at this stage.
Ratio Decidendi: The authoritative legal principle established by the decision is twofold. First, Article 15(4) of the Rome Statute confers on the Pre-Trial Chamber a supervisory, not an independent evaluative, function at the investigation authorisation stage: the Chamber reviews whether the Prosecutor’s assessment is legally erroneous or amounts to an abuse of discretion, and does not conduct its own substantive analysis. Second, Article 53(1)(c) establishes a narrow exception to a strong presumption in favour of prosecution, and the interests of justice cannot be determined adversely on the basis of political considerations, anticipated State non-cooperation, or assessments of prosecutorial feasibility. Both principles are binding on Pre-Trial Chambers exercising their Article 15 functions in future situations.
VII. Critical Analysis
7.1 Significance of the Decision
The Appeals Chamber’s judgment is of profound structural significance to the architecture of international criminal accountability. By firmly rejecting the instrumentalisation of the interests of justice provision as a mechanism for insulating politically sensitive investigations from prosecution, the Court addressed a vulnerability that, had it been permitted to stand, would have subjected the ICC’s investigative agenda to indirect veto by powerful states. The decision reaffirms the institutional independence of the Prosecutor and the Court’s foundational commitment to the principle that no actor state or non-state, powerful or marginalised is beyond the reach of international criminal law.10In the context of gender-based persecution specifically, the decision implicitly affirms that sustained, systematic discrimination targeting women as a class may constitute one of the gravest categories of crime within the Rome Statute’s framework, a development of considerable doctrinal importance.
7.2 Implications and Impact
The practical implications of the 2020 decision intensified dramatically following the Taliban’s reassumption of power in August 2021 and the subsequent legislative programme that has systematically dismantled Afghan women’s rights — prohibiting girls’ secondary and university education, excluding women from employment and public life, and mandating full veiling enforced through violence. In 2022, Prosecutor Khan announced a refocusing of the Afghanistan investigation specifically toward Taliban crimes against women and the LGBTQ+ community, describing the legislative suppression of women as potential evidence of ongoing crimes against humanity.11 The UN Special Rapporteur on human rights in Afghanistan, Richard Bennett, has characterised the Taliban’s regime as a system of gender apartheid, a framing that, if adopted by the ICC, would represent an important extension of the persecution doctrine under Article 7(1)(h) to encompass systematic legislative oppression.12
7.3 Critical Evaluation
Notwithstanding the significance of the 2020 decision, the ICC’s Afghanistan investigation faces structural limitations that the Appeals Chamber’s judgment neither resolved nor could resolve. The most fundamental is the Court’s complete dependence on State cooperation for enforcement. The Taliban, which is not a State Party to the Rome Statute and does not recognise ICC jurisdiction, will not surrender individuals pursuant to arrest warrants. The ICC has no independent enforcement mechanism, and the experience of the Bashir warrants in Sudan where a sitting head of state travelled internationally for years without arrest illustrates the depth of this structural weakness.13
The de-prioritisation of potential US criminal liability by Prosecutor Khan in 2022 also raises legitimate concerns about selective justice. The perception that the ICC applies its mandate with greater vigour to non-Western actors than to Western states whose cooperation is essential to the Court’s institutional survival threatens the principled universality that underpins the Court’s legitimacy. This concern is not resolved by the doctrinal correctness of the 2020 Appeals Chamber judgment; indeed, the contrast between the rigour of the legal reasoning and the pragmatism of subsequent prosecutorial decisions underscores the gap between the Court’s formal legal architecture and its operational realities.
A further limitation is temporal: ICC jurisdiction in Afghanistan attaches only from the date of ratification in 2003. The Taliban’s first period in power was the gender apartheid regime of 1996 to 2001, during which girls were entirely excluded from education and women from public life fell entirely outside the Court’s temporal jurisdiction. The investigation thus addresses a symptom while being structurally unable to address the full historical depth of the victimisation of Afghan women.
VIII. Conclusion
The Appeals Chamber’s judgment of 5 March 2020 in the Situation in the Islamic Republic of Afghanistan is a landmark in the institutional development of international criminal accountability. By establishing that the interests of justice cannot be deployed to frustrate investigations into grave crimes on grounds of political inconvenience or anticipated non-cooperation, the Court affirmed the foundational premise of the Rome Statute: that accountability for the most serious crimes of concern to the international community is not subject to geopolitical negotiation. In the specific context of Afghanistan, the decision has opened the institutional pathway for proceedings addressing a sustained programme of Taliban gender persecution that has intensified, since August 2021, into what the United Nations has characterised as gender apartheid.
The investigation nonetheless operates within structural constraints principally the absence of any enforcement mechanism capable of compelling Taliban compliance and the de-prioritisation of US conduct that reveal the gap between the ICC’s legal ambition and its operational reach. These limitations reinforce the case for complementary accountability strategies: universal jurisdiction prosecutions before domestic courts, the development of a specific gender apartheid convention under UN auspices, and continued engagement with the Security Council on referral and enforcement. The decision of 5 March 2020 established that the law demands accountability for Afghan women; ensuring that demand is met remains the unfinished work of the international community.
Bibliography
International Instruments
Rome Statute of the International Criminal Court (opened for signature 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90.
Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13.
Cases and Decisions
Situation in the Islamic Republic of Afghanistan (Judgment on the appeal against the decision on the authorisation of an investigation into the situation in the Islamic Republic of Afghanistan) ICC-02/17-138, 5 March 2020 (ICC Appeals Chamber).
Situation in the Islamic Republic of Afghanistan (Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan) ICC-02/17-33, 12 April 2019 (ICC Pre-Trial Chamber II).
Institutional and Secondary Materials
International Criminal Court, Office of the Prosecutor, ‘Statement of ICC Prosecutor, Karim A.A. Khan QC, on the Situation in Afghanistan’ (27 September 2021).
UN Human Rights Council, ‘Situation of human rights in Afghanistan: Report of the Special Rapporteur on the situation of human rights in Afghanistan, Richard Bennett’ (9 September 2022) UN Doc A/HRC/51/6.
UN General Assembly, ‘The situation of women and girls in Afghanistan: Report of the Secretary-General’ (2023) UN Doc A/78/…).
Kai Ambos, Treatise on International Criminal Law (OUP 2013).
Carsten Stahn, ‘Admissibility Challenges before the ICC: From Quasi-Primacy to Qualified Deference?’ in Carsten Stahn and Mohamed El Zeidy (eds), The International Criminal Court and Complementarity (CUP 2011).
Footnote(S):
1 Rome Statute of the International Criminal Court (opened for signature 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90, art 53(1)(c).
2 Situation in the Islamic Republic of Afghanistan ICC-02/17-138 (5 March 2020) (ICC Appeals Chamber) [1]–[5].
3 ibid [8]–[12]; Rome Statute, arts 7(1)(g), 7(1)(h), 8.
4 Situation in the Islamic Republic of Afghanistan ICC-02/17-33 (12 April 2019) (ICC Pre-Trial Chamber II) [94].
5 ICC-02/17-138 (n 2) [29]–[34].
6 ibid [35]–[40].
7 ibid [44]–[51]; Rome Statute, art 15(4).
8 ICC-02/17-138 (n 2) [55]–[66]; Rome Statute, art 53(1)(c).
9 ICC-02/17-138 (n 2) [72]–[79]; Rome Statute, art 7(1)(h).
10 Kai Ambos, Treatise on International Criminal Law (OUP 2013) vol 3, 65–68.
11 ICC OTP, ‘Statement of Prosecutor Khan on Afghanistan’ (27 September 2021).
12 UN Human Rights Council, ‘Report of the Special Rapporteur on the situation of human rights in Afghanistan, Richard Bennett’ (9 September 2022) UN Doc A/HRC/51/6, [52].
13 Carsten Stahn, ‘Admissibility Challenges before the ICC’ in Stahn and El Zeidy (eds) (n 11) 225.
