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Preliminary Examinations at the International Criminal Court: A Purpose-Oriented Analysis

(Working title)

by Ana Cristina Rodríguez Pineda

1. General Problems

The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) has received over 10,000

communications pursuant to Article 15 of the Rome Statute and out of those thousands of

communications has to date opened investigations into nine situations. What are the factors that have

guided the Prosecutor's use of discretion, are there limits to the use of that discretion, what limits should

there be.

Preliminary examinations afford opportunities for the OTP to deter ongoing or future crimes and

encourage national authorities to conduct their own investigations. 1

This however, may lead the OTP to

sideline from its main task: to determine whether or not to open an investigation. A careful balancing,

therefore, of different statutory goals is required.

Preliminary examinations are not criminal investigations rather, they establish whether there is a

reasonable basis2 to conduct a full criminal investigation and whether the Court has jurisdiction. Still,

they rely on cooperation, collect evidence and set in motion complementarity aspects while requiring no

judicial involvement throughout their duration. At least until the decision is taken to proceed with an

“investigation”.

As we have seen preliminary examinations are initiated and can go on for years, some date back to 2006.

Currently there are nine underway that have neither been closed nor advanced to the criminal

investigation stage. There are no timelines provided in the Rome Statute for a decision on a preliminary

examination. Having too many preliminary investigations ongoing for too long can result in diluting their

potential deterrent and preventive effects.

A factor to keep in mind is the limited capacity of the ICC. Since it can only take a limited number of

cases, does the preliminary examination work effectively to weed out unmeritorious cases or does it allow

the Prosecutor to pick and choose based on political factors. It is fair to wonder what purpose preliminary

examinations serve for the OTP’s prosecutorial strategy.

2. Analysis of Preliminary Examinations by the OTP

The OTP has developed a policy paper which describes the relevant Rome Statute principles, factors and

procedures applied by the Office in the conduct of its preliminary examination activities. Nevertheless the

application of the criteria listed in the policy paper remains vague. Until now, the OTP has made public

its preliminary examination of 21 situations. In three situations, the decision was made not to proceed to

investigation. Nine preliminary examinations have proceeded to investigation.

1 In 2011 the OTP’s report on Preliminary Examinations stated the “Office will also consider, as a matter of policy, the extent to which its PE activities can serve to

stimulate genuine national proceedings against those who appear to bear the greatest responsibility for the most serious crimes. In accordance with its positive

approach to complementarity, based on the goals of the preamble and article 93(10) of the Statute, the Office will seek to encourage and cooperate with efforts to

conduct genuine national proceedings.” See para 15 ICC-OTP Report on Preliminary Examinations (December 13, 2011). In addition, its draft policy paper on

PE of 2010 asserted the “Office may decide to make public its activities in relation to the preliminary examination activities in order to contribute to the prevention of

future crimes and encourage genuine national proceedings.” See para 89 ICC-OTP, Draft Policy Paper on Preliminary Examinations (October 4, 2010). 2 See articles 15 (3), (4), (6) and 53 (1) of the Rome Statute

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According to the policy paper, once a situation is identified, article 53(1) (a)‐(c) of the Rome Statute sets

out the legal framework for a preliminary examination. It provides that, in order to determine whether

there is a “reasonable basis” to proceed with an investigation into the situation the Prosecutor shall

consider: jurisdiction (temporal, material and either territorial or personal jurisdiction); admissibility

(complementarity and gravity); and the interests of justice. In addition it states that the standard of

evidence for proceeding with an investigation into a situation under the Statute is “reasonable basis”.3

A preliminary examination of a situation by the OTP may be initiated on the basis of: a) information sent

by individuals or groups, States, intergovernmental or non-governmental organizations; b) a referral from

a State Party or the Security Council; or c) a declaration accepting the exercise of jurisdiction by the

Court pursuant to article 12 (3) lodged by a State which is not a Party to the Statute. Interestingly

preliminary examination activities are conducted in the same manner irrespective of whether the Office

received a referral or acts on the basis of information of crimes obtained pursuant to article 15.

Serving as a filtering process the OTP applies four successive assessment phases to distinguish which

cases warrant investigations from those that don’t:

Phase 1: Initial assessment

Phase 2: Subject matter assessment

Phase 3: Admissibility assessment

Phase 4: Interests of justice assessment

Depending on the facts and circumstances of each situation, the Office may either decide (i) to decline to

initiate an investigation where the information manifestly fails to satisfy the factors set out in article 53(1)

(a)-(c);4 (ii) to continue to asses relevant national proceedings; (iii) to continue to collect information in

order to establish sufficient factual and legal basis to render a determination; or (iv) to initiate the

investigation, subject to judicial review as appropriate. Can these decisions be considered legal, policy or

part of a public relations exercise? What if any is their subsequent status?

3. Methodology

This is a project for a PhD dissertation aimed at addressing the nature, scope and purpose of ICC

Preliminary Examinations in light of the fundamental goals of international criminal law and the

international criminal justice system (i.e. the ICC, its Statute and the role of domestic courts).

The research to be undertaken intends to focus on the study and analysis of “preliminary examinations”,

to assess their usefulness, their function in the ICC system, their potential deterrent effect and their impact

on the fulfillment of the mission of the Court to contribute to ending impunity and preventing atrocities.

While certain aspects of this topic have been the object of publications and studies, it has not yet been

comprehensively examined in the purpose-oriented manner proposed herein.

Naturally, the role and the powers of the ICC Prosecutor will be at the core of the analysis and more

specifically scrutiny of all the legal policy documents pertaining to preliminary examinations will be

carried out, setting out in detail their function, usefulness and limits. In so doing, the research activity will

also aim at determining whether or not the Court should play a role during preliminary examinations and

3Paragraphs 3, 4, 5 of the OTP policy paper on preliminary examinations See at: http://www.icc-

cpi.int/en_menus/icc/press%20and%20media/press%20releases/Documents/OTP%20Preliminary%20Examinations/OTP%20-

%20Policy%20Paper%20Preliminary%20Examinations%20%202013.pdf 4 The Pre-Trial Chamber may, on its own initiative, review a decision of the Prosecutor not to proceed if it is based solely on article 53 paragraph 1 (c) or 2 (c). In such

a case, the decision of the Prosecutor shall be effective only if confirmed by the Pre-Trial Chamber.

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to what extent. Finally, the broader question of the relationship with other actors, including States and the

Security Council will also be tackled.

This is initially a three-year project. In the first phase, the institutional profile of “preliminary

examinations” will be outlined against the background of the role and function of the ICC Prosecutor. On

the basis of research focusing on the Statute of the ICC and its provisions, travaux preparatoires,

commentaries, books and articles, as well as the policy documents issued by the Court and the statements

by the OTP and any relevant decisions by ICC Chambers. This will also allow taking stock on the way in

which this procedural mechanism has developed. Qualitative research will be complemented by in-depth

interviews. In the second phase, the results of the first will be measured against the overall objectives and

goals of the ICC system, including deterrence, and issues pertaining to the selection of cases at the ICC,

as well as prosecutorial discretion and judicial oversight. In the last and third phase the two aspects will

be brought together to outline a general theory of “preliminary examinations” and assess whether the ICC

Prosecutor has utilized the tool in a satisfactory manner, taking into account the broader framework of

international criminal justice institutions and mechanisms. Case-studies will be integrated in the context

of particular substantive arguments throughout the chapters and a comparative assessment will be carried

out to analyze the current practice of the OTP. This work is intended to have practical and applied effects

such as influencing policy. Therefore recommendations concerning the enhancement, improvement and if

necessary reform of preliminary examinations will be formulated.

4. Provisional Table of Contents

Introduction

Chapter I. Context, nature and functions of Preliminary Examinations

1.1. Nature, role and function of PE

1.2. Relationship to the goals of the ICC

1.2.1. Ending impunity

1.2.2. Deterrence and Prevention

1.2.3. Advancing the interests of justice

1.2.4. Complementarity

1.2.5. Cooperation

1.3. Role of the Office of The Prosecutor (Prosecutorial discretion)

1.3.1. Independence, impartiality and objectivity

1.3.2. Confidentiality

1.3.3. Accountability

1.4. Similarities and differences with other national, regional and international systems

1.4.1. PE in domestic systems

1.4.2. PE in international mechanisms, including other international courts and tribunals

1.4.3. PE in regional courts and mechanisms

1.5. Existing impact and policy dilemmas

1.5.1. Maintaining the credibility of ICC action

1.5.2. A preventive or coercion tool

1.5.3. Encouraging genuine national proceedings

1.5.4. Possible imbalance between prosecutorial discretion and judicial review

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1.5.5. Resource constraints

1.5.6. Political implications and due process concerns

1.5.7. Interaction with human rights treaty bodies and fact-finding missions

Chapter II. Legal Framework of the ICC

2.1. Drafting history

2.2. Triggers

2.2.1. A decision of the Prosecutor

2.2.2. A referral from a State party or the Security Council

2.2.3. A declaration accepting the exercise of jurisdiction by the Court by a State which is not a

party to the Statute

2.3. Phases (Filtering Process)

2.3.1. Initial assessment

2.3.2. Subject matter assessment

2.3.3. Admissibility assessment

2.3.4. Interests of justice assessment

2.4. Evidentiary Standards (Reasonable Basis)

2.4.1. Reasonable Basis findings

2.4.2. Preservation of evidence

2.4.3. Commissions of Inquiry

2.5. Time period for the completion of a PE

2.5.1. Initiation

2.5.2. Suspension

2.5.3. Closure

2.5.4. Inactivity

2.6. Judicial Review

Chapter III. Preliminary Examinations in Operation, including practice 3.1. Practice of the OTP

3.1.1. Policy Paper on PE

3.1.2. Evolution in the OTP’s approach to PE

3.1.3. Lessons learned from practice to date

3.2. Interaction with other actors

3.2.1. Relationship with the Pre-Trial Chamber

3.2.2. Dynamics with States

3.2.3. Interplay with the United Nations Security Council

3.3. Overview of the current status of PE

3.3.1. Strategy and priorities

3.3.2. Analysis of national proceedings

3.3.3. Transparency

3.3.4. Public profile of PE

3.3.5. Timing

3.4. Review of the OTP’s decisions on PE

3.4.1. Comparative assessment of case-studies

Chapter IV. Recommendations for more effective Preliminary Examinations

4.1. Could the existing system be improved? What aspects? How?

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4.1.1. Review of the existing legal framework

4.1.2. Enhance consistency and effectiveness

4.1.3. Enhance predictability and legality

4.1.4. Implications of publicity of PE

4.1.5. Improve reporting and transparency aspects of PE

4.1.6. General guidance on timelines for PE

4.1.7. Increase the involvement of national and regional mechanisms

4.1.8. Equipping the ICC with the necessary resources

Conclusion

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