70. As regards the feasibility of operationally effective investigations, the Office notes that feasibility with regard to status is not, as such, a separate factor in deciding whether or not to initiate an investigation. Balancing feasibility as a stand-alone factor could also undermine the consistent application of the Statute and encourage obstruction to discourage ICC intervention. If it is clear that no agreement can be reached, and the prosecution and defence believe that all investigations have been completed and there are no outstanding issues that need to be resolved before trial, the court will set a hearing date. The problems associated with this declaration are almost too numerous to list. First, as many commentators have noted, it simply rewards the United States for its open hostility to the ICC and will encourage any state under preliminary investigation to make the OTP`s investigation as difficult as possible. Second, the CPT is simply wrong to assert that the OTP`s investigative difficulties “will prove even more difficult in the context of an actual investigation.” Finally, the opening of an investigation triggers a large number of cooperation obligations – in Part 9 of the Rome Statute – that do not exist at the preliminary examination stage. Even I am not cynical enough to believe that these commitments mean nothing to states. And third, the TPC does not even attempt to explain why the situation in Afghanistan is different from other situations that the TPC has allowed the OTP to investigate proprio motu, such as Kenya and Georgia. Were the prospects for cooperation really better? (Experience suggests otherwise.) And didn`t the TPC ask the OTP just a few months ago to investigate the Rohingya situation, where Myanmar`s prospects for cooperation are below zero? If a case has not been resolved, many courts set a date for a thematic conference. Lawyers usually appear before a judge at this hearing without their clients and try to agree on undisputed facts or legal issues. These agreements are called provisions. The thematic conference can shorten the actual time of the process by setting points that do not need to be proven during the trial.

If an agreement cannot be reached through pre-litigation conferences, the judge sets a date for the hearing. This will be the rare situation which does not comply with Articles 53(1)(a) and 53(1)(b). How many non-frivolous references do not contain allegations of at least one offence within the jurisdiction of the Court? And how many situations will fail the severity analysis if the CPT insists that a situation involving only juvenile offenders and fewer than a dozen deaths is serious enough for a formal investigation? If the PTC`s decision stands, the PTC`s decision will require the OTP to launch formal investigations into literally dozens of situations (including all current situations it is provisionally investigating) or refuse to investigate specifically on the basis of the interests of justice – the only criterion, according to the PTC, where it retains considerable discretion. Given the obvious limitations of the OTP`s resources, this is not really a choice. It is folly for the PTC to believe that it can assess each of these factors better than the OTP. The OTP has lived with Afghanistan`s preliminary examination for more than a decade; two CTP judges have only been dealing with the situation since March 2018. Therefore, at the very least, the CTP should have given considerable weight to the OTP`s conclusion that an investigation in Afghanistan was feasible. Instead, the PTC simply replaces its feasibility analysis with the OTPs, giving no credit to the latter.

And that`s without a single word about the auditing standard. Abstractly, I have some sympathy for this statement. I have long argued that the OTP must focus on situations that it can effectively investigate. But there are two problems with the TPC`s position. To begin with, the OTP has consistently rejected the idea that feasibility is relevant to its equity valuation interests – and cautioned against doing exactly what the TPC has now done: reducing the interests of justice to a mechanical determination of the likelihood of success of an investigation. It said in the “Interests of Justice” section of its 2013 Preliminary Examination Guidance Document: Patents, Trademarks and Copyright (Legal Rights; Various Organizations) (2013, 11). PTC legal-abbreviations.lawjournal.eu Accessed January 11, 2022, by legal-abbreviations.lawjournal.eu/ptc-patent/ These reforms are unlikely to make much difference to crimes committed by Afghan forces. But it`s hard to believe they won`t facilitate the government and OTP`s investigation of the Taliban. In fact, to my knowledge (readers should get involved), the Afghan government has never said it will not cooperate with the ICC regarding Taliban crimes.

But not only does the TPC fail to recognize Afghanistan`s legislative and other reforms, but it also suggests, without a single word of explanation, that despite the shared interest of the government and the OTP in holding the Taliban accountable, there would be no cooperation. This article on PTC was published under the terms of the Creative Commons Attribution 3.0 (CC BY 3.0) license, which permits unrestricted use and reproduction, provided that the author or authors of the PTC listing and the Lawi platform are credited as the source of the PTC listing. Please note that this CC BY license applies to certain PTC textual content and that certain images and other textual or non-textual elements may be subject to special copyright laws. For instructions on citing PTC (CC BY licensed), see our “Cite this entry” recommendation below. 11 2013. 11 2022 And this is where the real danger lies in the PTC`s decision in the Comoros. Recall what I said earlier: If the OTP refuses to open a formal investigation because a situation does not involve a crime that falls within the court`s jurisdiction, or because the situation is not serious enough, the TPC can only ask the OTP to reconsider its decision not to investigate. The current decision is an example of this. But if the OTP refuses to open a formal investigation because such an investigation would not be in the interests of justice, the PTC may ask the OTP to reconsider its decision. In practice, Comoros` decision will compel the OTP to refuse to open investigations for a reason that is still subject to “rigorous” review by PTC.

The PTC`s failure to explain why the OTP should not be able to investigate Taliban crimes is, in my view, fatal to its decision. How could it not be in the interests of justice for the OTP to investigate the most serious and numerous crimes in the situation in Afghanistan? In particular in view of the fact that, as the CPT itself admits (para. 87), “680 of the 699 [victims`] applications welcomed the prospect of an investigation aimed at bringing the perpetrators to justice, preventing crime and establishing the truth”? It is, of course, unfortunate that it is nearly impossible for the OTP to investigate crimes committed by the CIA and Afghan forces. But no coherent understanding of the “interests of justice” can base an investigation on the OTP`s ability to examine all parties to the conflict equally. And as Kip Hale often reminds us, who knows what the future holds? For now, it is enough to pursue the Taliban. The other parties can come later. The OTP made this statement in the midst of Afghanistan`s preliminary investigation and reflects the OTP`s longstanding policy. But at no time did the TPC—or any other PTC—suggest or even imply that the OTP`s position was wrong.

Therefore, at the very least, the PTC should have asked the OTP to explain the feasibility issue before rejecting the request to Afghanistan solely on the basis of an interpretation of the interests of justice that the OTP has consistently rejected. In some courts, the pre-trial conference may be the first opportunity for the lawyer to meet with the prosecutor to discuss the case. Discussion topics include any available evidence or defenses, as well as any means to resolve the case before trial. Because Arizona`s Rules of Criminal Procedure are drafted, prosecutors are technically required to make their first disclosures at the first pretrial conference. In short, the CPT`s decision to dismiss the Afghanistan inquiry solely on the grounds of “the interests of justice” is profoundly, irrevocably and dangerously wrong. If it persists, it will not only leave the Taliban`s many crimes uninvestigated and unpunished, but it will also erode the OTP`s proprio motu power and encourage states, especially the most powerful ones, to be as uncooperative as possible with the ICC. I desperately hope that my first message is wrong and that the OTP can appeal the decision. The answer is often no, but if you`re not sure, you should ask your lawyer.

At the preliminary hearing, the lawyer meets with the prosecutor, and the defendant does not usually attend this meeting.