Under Construction Journal Issue 6.1 UNDER CONSTRUCTION JOURNAL 6.1 | Page 93

Parties could commit atrocities without any fear of prosecution, ultimately, leaving the ICC impotent 23 .
Therefore, as a result of Article 12 (2) (a), the Court has jurisdiction over ‘pro-Government forces and anti-
Government forces’ 24 who are Afghanistan government forces, the US forces and the Taliban.
However, despite the use of Article 12 (2) (a), the US appears to have achieved what it wanted as
the Pre-Trial Chamber II (PTC) rejected the request of the Office of the Prosecutor (OTP) to proceed with
the investigation, inter alia, stating that any investigation would not serve in the interests of justice 25 . The
PTC elaborated on this by referring to the likelihood of obtaining full cooperation from parties and non-
parties to the Rome Statute and the ability of the OTP to complete a full and thorough investigation with
the chance of bringing an effective prosecution 26 . Thus, there was an Appeal Hearing on the 4-6 December
2019 owing to the OTP appealing the PTC’s decision 27 .
Amicus Curiae Submissions
As one can imagine, the public interest in this appeal hearing is nothing short of high. This is one of the
reasons as to why the Appeals Chamber (AC) have permitted amicus curiae 28 submissions under Rule 103 29
that have included a variety of parties such as Afghan and international non-governmental organisations
(NGOs), human rights organizations and the FCPAHT. Although every party will submit observations that
will be worthy of analysis in their own right, this piece will focus on two that may have the greatest
significance. These are the FCPAHT and the NGO, the ECLJ. Consequently, both parties, their submissions
and any broader issues raised will be analyzed below.
23
supra n. 1, 67-68.
supra n. 6.
25
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), 28-31.
26
ibid, 30-31; for more detailed analysis, see “The ICC Pre-Trial Chamber Decision on the Situation in Afghanistan:
A Few Thoughts on the Interests of Justice”, Dapo Akande, accessed 15 November 2019,
https://www.ejiltalk.org/the-icc-pre-trial-chamber-decision-on-the-situation-in-afghanistan-a-few-thoughts-on-
the-interests-of-justice/.
27
For further analysis, see “Thoughts on the Afghanistan Appeal”, Kevin Jon Heller, accessed 15 November 2019,
http://opiniojuris.org/2019/06/08/thoughts-on-the-afghanistan-appeal/; “Strategies for Appealing the Afghanistan
Decision”, Kevin Jon Heller, accessed 15 November 2019, http://opiniojuris.org/2019/04/17/additional-thoughts-
on-whether-the-otp-can-appeal-the-afghanistan-rejection/.
28
A party (who is not a party to the case) who may provide information, expertise or insight on certain issues in a
case.
29
Rome Statute, supra n. 3, see the associated Rules of Procedure and Evidence.
24
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