The OTP’s Preliminary Examinations & Burundi’s Withdrawal from the ICC

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The Prosecutor of the International Criminal Court (“ICC”), Ms. Fatou Bensouda, launched the Office of the Prosecutor (“OTP”) Report on Preliminary Examination Activities 2017 at this year’s 16th Assembly of Parties (“ASP”) to the ICC. The report provides an overview of her Office’s preliminary examination activities that have been conducted between 1 October 2016 and 30 November 2017 in relation to ten situations under consideration for possible investigation. The OTP is responsible for determining whether a situation meets the legal criteria established by the Rome Statute of the ICC to warrant investigations. In order to do so, the OTP conducts a preliminary examination to decide whether there is a reasonable basis to initiate an investigation into a situation at hand. The OTP is required to assess and verify several criteria before it can initiate an investigation. Firstly, the crimes must be committed after 1 July 2002, which is the date on which the Rome Statute entered into force. Secondly, the alleged crimes must have been committed on the territory of a State Party or by a national of a State Party. An option that does not rely on the territorial or nationality linkage of the alleged perpetrator is when the United Nations Security Council directly refers a case to the ICC. Thirdly, the question of whether the crimes committed are within the jurisdiction of the Court as stated in Article 5 of the Rome Statute, which are the crime of genocide, crimes against humanity, war crimes and the crime of aggression, must be answered prior to deciding whether to launch an investigation. Fourthly, the OTP is required to assess whether genuine investigations or prosecutions for the same crime were undertaken at the national level; if not, then the ICC can consider proceeding to the investigation stage. Lastly, the OTP needs to ask itself whether the opening of an investigation would serve the interest of justice and of the victims of international crimes. In this regard, it is noteworthy that any individual, group or State may send relevant information to the OTP regarding alleged crimes falling under the jurisdiction of the Court. In Phase 1 of the preliminary examination process, the OTP accepts information on alleged crimes and has to date received more than 10,000 communications, which are vital for forming the initial basis of the Office’s preliminary examinations.

Side Event: Launch of OTP Report on Preliminary Examination Activities 201720171208_140951

The Report on Preliminary Examination Activities (2017) highlighted that seven situations remain under ongoing examination, three of which are under Phase 2 (Subject-Matter Jurisdiction), namely: Gabonese Republic, Palestine, and Ukraine. Four situations are at a more advanced stage: Colombia, Guinea, Iraq/UK, and Nigeria are currently in Phase 3, which focuses on admissibility, comprising both complementarity and gravity. This year, three preliminary examinations were completed: Afghanistan, Burundi, and Registered Vessels of Comoros, Greece and Cambodia. The OTP report aims to promote public awareness and transparency regarding the Office’s preliminary examination process and related activities.

The completed preliminary examination on the situation in Burundi led to the ICC Prosecutor to open an investigation on 25 October 2017 to investigate alleged crimes against humanity, such as murder and attempted murder, imprisonment or severe deprivation of liberty, torture, rape, enforced disappearance and persecution. Unfortunately, in response to the announcement of the ICC’s investigation, Burundi decided to withdraw from the Rome Statute, which made it the first State Party ever to withdraw.

Side Event: Burundi in the aftermath of the opening of an ICC Investigation20171208_173425

Its withdrawal took effect on 27 October 2017; therefore, the ICC can only exercise its jurisdiction over those crimes that were allegedly committed in Burundi or by nationals of Burundi between December 2004 and 26 October 2017. Burundi’s actions are of utmost concern to the ASP and the ICC, which is evident in the fact that a whole side event on this day was dedicated to Burundi in the aftermath of the opening of an ICC investigation. The Court’s impartiality and independence has often been questioned, especially by some African leaders who accuse the court of being hijacked by influential Western states and acting as a proxy for foreign-led government change. The ICC’s independence and impartiality has been under attack and changing the perception among African members and non-member states will be one of the major tasks that the newly elected ASP President, H.E. O-Gon Kwon, will need to address during his Presidency.

 

This blogpost and Annika’s attendance to the 16th Assembly of States Parties in the framework of the Canadian Partnership for International Justice was supported by the Social Sciences and Humanities Research Council of Canada.

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