Abstract

On 5 March 2020, the Appeals Chamber (AC) of the International Criminal Court (ICC) has finally authorised an investigation on the crimes related to the situation in Afghanistan. The AC has reversed the highly controversial decision by which the Pre-Trial Chamber (PTC) had rejected the Prosecutor’s request to open an investigation. This contribution aims to discuss one of the core issues of the appeal judgment: the use of the notion of the ‘interest of justice’. For the one hand, it observes how the AC briefly, but strongly, criticized the analysis of the ‘interest of justice’ provided by the PTC. For the other hand, and most importantly, it analyses how the AC shed light on the Prosecutor’s and the PTC’s competences in the context of a decision to open an investigation. In particular, by finding that the PTC does not have the competence to examine whether the investigation ‘would not serve the interest of justice’, the AC implicitly recognised the Prosecutor’s almost absolute discretion to open an investigation when acting proprio motu.