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Peter Dejong

ICC judges authorize Prosecution to resume investigation in Afghanistan

The Pre-Trial Chamber II of the ICC has authorized the Prosecution to resume the investigation regarding the situation in Afghanistan. The judges found that Afghanistan is not conducting a genuine investigation into the matter and that the Afghan authorities are not showing interest in pursuing the referral request made before the Chamber in March 2020.

At that time, the Office of the Prosecutor had notified the Chamber about the referral request submitted. In September 2021, invoking Article 18(2) of the Rome Statute, the Office of the Prosecutor requested permission to resume the investigation. After inviting Afghanistan to comment on this request, without obtaining any response from the Government, the Office of the Prosecutor handed over the material it already had in its possession to the Chamber, adding further observations and comments from the victims.

The article 18(2) of the Rome Statute reads “[…] a State may inform the Court that it is investigating or has investigated its nationals or others within its jurisdiction with respect to criminal acts […]. At the request of that State, the Prosecutor shall defer to the State's investigation of those persons unless the Pre-Trial Chamber, on the application of the Prosecutor, decides to authorize the investigation.”

The decision taken by the Pre-Trial Chamber II was made after analyzing and considering the materials transmitted by Afghanistan and also the action that the government undertook. They concluded that the investigations made by afghani authorities didn't cover the full scope of the Prosecutor’s intended investigations and that the government didn't act in a manner that shows an interest in pursuing and supporting the Deferral Request presented in March 2020.