Sara Wharton and Rosemary Grey

Preliminary examinations are in the limelight following the release of the ICC Office of the Prosecutor (OTP’s) 2017 Report on Preliminary Examination Activities, which was presented today at the 16th session of the ICC Assembly of States Parties in New York.

Additionally, recent developments in several situations under preliminary examination have garnered attention, including the Prosecutor’s decision to seek authorisation to open investigations in Afghanistan and Burundi and affirmation of her 2014 decision not to proceed with an investigation into war crimes allegedly committed by members of the Israel Defence Forces on the vessels of Comoros, Cambodia, and Greece.

In this period of heightened interest in ICC preliminary examinations, we want to take the opportunity to share some findings of our forthcoming study, which tracks and compares data across all 25 preliminary examinations that have been publicised to date.[1]

As these findings will show, the OTP’s preliminary examinations practice is one of the most interesting and dynamic areas of its work. A close look at this practice is critical to better understanding the debate about the Court’s greater activity in some regions of the world than in others, how the ICC has been instrumentalised by states and non-state actors, and how certain important legal concepts are being understood at this largely-unexamined stage of proceedings.

This study will also show that, despite not having full investigatory powers at this initial stage of its work, the OTP is nonetheless very active during its preliminary examinations, interacts with a wide range of domestic and international actors, and makes important legal decisions on a range of issues, including the definition of crimes within the jurisdiction of the Court.

Regional representation

When disaggregated by the state(s) with territorial jurisdiction over the alleged crimes, the African group is the most represented region by a significant margin.[2]

As shown here, in thirteen preliminary examinations, all of the alleged crimes were committed in African states. In five, all of the alleged crimes were committed in Asia-Pacific States.[3] In three, all of the alleged crimes were committed in Latin American & Caribbean states. And in two, all of the alleged crimes were committed in Eastern European states. There was also one preliminary examination in which the alleged crimes were committed in both Asia-Pacific and Eastern European states, and one in which the alleged crimes were committed on the vessels of states from the African group, Asia-Pacific group, and Western Europe & Others group (WEOG).

The breakdown changes somewhat when preliminary examinations are disaggregated by to the state(s) with nationality jurisdiction over the alleged crimes.

Thirteen preliminary examinations concerned crimes allegedly committed only by nationals of African states; three concerned crimes allegedly committed only by nationals of WEOG states; three concerned crimes allegedly committed only by nationals of Latin American & Caribbean states; two concerned crimes allegedly committed only by nationals of Eastern European states; and one concerned crimes allegedly committed only by nationals of an Asia-Pacific state. There were also two preliminary examinations in which the alleged crimes were committed by nationals of both Asia-Pacific and WEOG states, and one (Palestine I) for which information on the nationality of the alleged perpetrators was unavailable.

As this snapshot shows, considering the question of nationality jurisdiction in addition to territorial jurisdiction better nuances the question of which states have come to the attention of the ICC. In particular, it shows that the OTP has been more active at the preliminary examination stage in relation to WEOG states than much of the public commentary on the Court suggests.

Duration

The duration of preliminary examinations varies widely. For example, the shortest known preliminary examination lasted less than a week (Libya), and the longest has lasted more than thirteen years (Colombia). The full range can be seen in the graph above, which shows the known length of preliminary examinations organised by starting year.

Situations where the Prosecutor decided to proceed to an investigation are shown in green; situations where he or she decided not to proceed to an investigation are shown in red; and ongoing preliminary examinations are shown in white.

The duration is measured from the date that the preliminary examination was opened or, where that date is unknown, from the date it was announced, the date of the referral, or the date of the declaration under Article 12(3).

The recorded completion date is the date that the OTP’s decision about whether the Article 53(1) criteria were satisfied was made/announced. For example, this could have occurred when the decision to open an investigation was made/announced, the date that authorisation from the Pre-Trial Chamber to open an investigation was sought, or the decision to close the preliminary examination and not to proceed to an investigation was made/announced.[4]

‘Triggers’

Preliminary examinations can be initiated in three ways: the Prosecutor can initiate one on his or her own motion (proprio motu); the situation can be referred by a State Party to the Rome Statute; or it can be referred by the UN Security Council. The conditions that must be satisfied in order for the ICC to exercise jurisdiction vary depending on which ‘trigger’ is pulled,[5] as does the process for moving from a preliminary examination to an investigation.[6]

In the ICC’s practice so far, the majority of a preliminary examinations have been initiated by the Prosecutor proprio motu. This ‘trigger’ has been used in a total of eighteen out of the twenty-five preliminary examinations (72%) to date.

However, not all proprio motu situations are the same. Of the eighteen seen thus far, four were initiated following a declaration by a non-State Party accepting the jurisdiction of the ICC (an ‘Article 12(3) declaration’),[7] and fourteen were initiated in response to communications from received under Article 15.

While there is limited information on who submitted these article 15 communications, this is sometimes made public by the sender or the OTP.[8] Interestingly, the authors include representatives of states that are not parties to the Rome Statute, as well as individuals and NGOs. For example, the Prosecutor General of Moscow submitted a reported 3,817 communications to the OTP in relation to the preliminary examination regarding the situation in Georgia.[9]

It is also noteworthy that there were two situations in which a State Party made a referral after the prosecutor had initiated the preliminary examination proprio motu: the situation in the DRC, and the second situation in the CAR (CAR II).[10] As a result of these post-hoc State Party referrals, the Prosecutor did not need to seek pre-trial authorisation before an investigation could begin in those states.

A further five preliminary examinations were initiated solely on the basis of a State Party referral (Uganda, CAR I, Mali, Comoros and Gabon), and two were initiated in response to referrals from the UN Security Council (Darfur and Libya).

Decision on whether or not to open an investigation

One of the functions of a preliminary examination is to enable the Prosecutor to determine whether there is a reasonable basis to open a full-scale investigation. This decision must be made in accordance with Article 53(1) of the Rome Statute, which states that the Prosecutor ‘shall’ (must) initiate an investigation unless he or she finds that there is no reasonable basis to proceed, taking into account:

• Whether the available information provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed (‘jurisdiction’);
• Whether the cases of interest are or would be admissible to the ICC (‘admissibility’); and
• Whether an investigation would be against the ‘interests of justice’.

Each of these criteria can be broken down further for a more detailed analysis. For example, when applying the jurisdiction criterion, the Prosecutor must consider whether the relevant pre-conditions to jurisdiction are satisfied,[11] and whether there is sufficient evidence that a crime within the Court’s temporal, personal and subject matter jurisdiction has been committed.

The admissibility criterion also contains multiple questions, including whether the relevant cases are being (or have been) investigated or prosecuted ‘genuinely’ by a national court (complementarity), and whether those cases are of sufficient gravity to justify further action by the ICC (gravity).

Together, Prosecutor Moreno-Ocampo and Prosecutor Bensouda have made a decision not to investigate following preliminary examinations in six situations: Venezuela, Iraq/UK I, the Republic of Korea, Palestine I, Honduras, and Comoros. The reasons given in each situation are summarised in Figure 4, below.

Three such decisions were made on the grounds that subject matter jurisdiction was lacking, indicating that the OTP is undertaking some important legal analysis at this early and largely unexamined stage of the proceedings.

For example, the decision regarding the situation in the Republic of Korea was based on a detailed analysis of the tests for establishing the existence of an international armed conflict and of IHL concepts that are yet to receive detailed attention in the jurisprudence of the ICC, such as the war crime of perfidy.

Likewise, there is interesting legal analysis to be found in preliminary examination where the Office has made a positive decision on subject matter jurisdiction. For example, the 2016 and 2017 Preliminary Examination reports contains more detailed analysis of the crime against humanity of ‘gender-based persecution’ than any case before the Court to date.

It is notable that neither Prosecutor Moreno-Ocampo nor Prosecutor Bensouda has based a decision not to investigate on the complementarity principle. The practice in some situations has been to wait quite a long period before determining whether the relevant cases will be (or are being) investigated or prosecuted genuinely by the state. Examples include the preliminary examinations in Colombia and Guinea, in which the OTP’s decision on complementarity has been pending for longer than the total length of some preliminary examinations (see Figure 2).

Correlations

Our study also considers correlations between different data series, in order to provide a more nuanced analysis about the OTP’s preliminary examination activities.

To give one example, considering the data on ‘triggers’ together with the data on ‘regional representation’ (by states with territorial jurisdiction) indicates that the most geographically diverse trigger to date has been the ‘proprio motu’ trigger, which has been used in relation to crimes allegedly committed in African, Asia-Pacific, Latin American & Caribbean, and Eastern European states (see Figure 5, below).

The use of the other triggers was less diverse. For the five preliminary examinations initiated solely by a State Party referral, four concerned crimes allegedly committed in African states; and one concerned crimes allegedly committed on the vessels of African, Asia-Pacific and WEOG states (the referral itself having been submitted by an African state).

Both situations referred by the Security Council concerned crimes allegedly committed in African states and by African nationals.

We hope to publish the full study and analysis in 2018 to coincide with the 20^th anniversary of the Rome Statute. However, we hope that even this brief summary will prove to be a useful part of the ongoing discussions about preliminary examinations at the ICC.

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[1] For reasons detailed in our forthcoming article, the study puts the total number of preliminary examinations at 25: Afghanistan; Burundi; Central African Republic I (CAR I); Central African Republic II (CAR II); Colombia; Registered vessels of Comoros, Greece and Cambodia; Côte d’Ivoire; Darfur; the Democratic Republic of Congo (DRC); Gabon; Georgia; Guinea; Honduras; Iraq/UK I; Iraq/UK II; Kenya; Libya; Mali; Nigeria; Palestine I; Palestine II; Republic of Korea; Uganda; Ukraine; and Venezuela.

[2] The regional designations used here follow categories used by the UN. The exception is the state of Palestine, which has not yet been assigned to a UN regional group, but is counted as an Asia-Pacific state by the ICC Assembly of States Parties (ASP).

[3] This includes both preliminary examinations in Palestine (i.e. Palestine I and Palestine II), taking into account the fact that the ASP now classifies Palestine as an Asia-Pacific state (although, as of the Palestine I preliminary examination, the statehood of Palestine was not yet accepted by the Prosecutor).

[4] For the situation on the registered vessels of the Union of the Comoros et al, the recorded completion date is the date of the Prosecutor’s original decision (6 November 2014), which was ‘reaffirmed’ on 30 November 2017.

[5] Ordinarily, the alleged crimes must have been committed on the territory of, or by a national of, a state that has accepted the ICC’s jurisdiction. In situations referred by the UN Security Council, these pre-conditions do not apply. See Rome Statute, Article 12.

[6] In situations where the Prosecutor initiated a preliminary examination proprio motu, he or she must obtain authorisation from the Pre-Trial Chamber before proceeding to a full-scale investigation. See Rome Statute, Article 15(3)-(4).

[7] The attempted Article 12(3) declaration in the Palestine I preliminary examination has been counted here as the trigger for that preliminary examination even though it was ultimately ruled invalid by the OTP.

[8] See, for example, the communications from the Survivors’ Network of those Abused by Priests.

[9] Report of International Criminal Court to the Sixty-fourth session of the UN General Assembly, 17 September 2009, A/64/356, para. 48.

[10] Prosecutor Moreno-Ocampo has also stated that the OTP ‘invited’ the referral from Uganda. This invitation is not mentioned in the OTP’s press release of 29 January 2004 regarding President Museveni’s decision to ‘refer the situation concerning the Lord’s Resistance Army’ to the ICC Prosecutor, nor is it mentioned in the OTP’s press release of 29 July 2004 announcing the start of the Uganda investigation. Thus, we have characterised the trigger for the Uganda preliminary examination as a state referral.

[11] Above note 5.