Photo: Libertatem magazine (http://libertatemmagazine.com/featured/deportation-rohingya-muslims/)

On this last day of the 17^th Assembly of State Parties (ASP) to the International Criminal Court (ICC), which took place in The Hague (Netherlands) from 5 to 12 December 2018, it is fair to affirm that the 20^th anniversary of the ICC witnessed a generally uncontroversial ASP. Contrary to the effervescent negotiations that took place during the 16^th ASP, ultimately leading to the activation of the Court’s jurisdiction over the crime of aggression, those of the 17^th edition showcased global placidity and flexibility from states, thus creating an illusion of calm after the storm. Nevertheless, one important aspect of the Court’s work was at the core of many discussions, both within the Assembly and during the various side-events that took place: the preliminary examinations (PEs), carried out by the Office of the Prosecutor (OTP).

On the first day of the ASP, the launch of the Prosecutor’s Report on Preliminary Examination Activities for the year 2018 allowed members and organizations of civil society to express various concerns regarding the PEs currently carried out by the OTP. Then, various side-events through the seven-day long ASP allowed further suggestions to be made concerning ways to improve the PEs. Interestingly, the most recent PE opened by the OTP, which concerns the alleged deportation of the Rohingya from Myanmar to Bangladesh, was barely mentioned. This silence is even more surprising given the fact that international community has been widely calling for the ICC to act in relation to what has been qualified by many as a genocide.

This three-part blogpost aims at filling this silence by exploring the possible outcomes of this PE in the light of the recent discussions that took place at the 17^th ICC ASP. The first post will detail the legal framework of PEs before the ICC, while the second will analyze the situation in Myanmar and Bangladesh, including the legal procedures that led to the opening of the PE. Finally, the third post will provide an overview of the most salient debates pertaining to PEs before the ICC in order to feed the discussions related to the fight against impunity with respect to the Rohingya situation.

Preliminary examination and the ICC: an innovative legal framework

The preliminary examination process is idiosyncratic to the ICC. While the International Military Tribunals of Nuremberg and Tokyo as well as ad hoc and hybrid tribunals were given jurisdiction over specific situations (see here, p. 6), the Rome Statute does not provide for any specific situation to be considered by the ICC. The OTP holds the important power to determine whether a situation meets the legal criteria established by the Rome Statute to warrant an investigation, which could later lead to the opening of a case. This assessment is at the core of the preliminary examination process (see here, pp. 6-7).

In 2013, the OTP produced a Policy Paper on Preliminary Examinations. This Policy Paper highlights that the PEs must respect the core principles of independence, impartiality and objectivity, pursuant to Articles 42, 21(3) and 54(1) of the Statute (see pp. 7-8). To be sure, it laid down that the innovative process provided for in the Rome Statute shall be divided in four phases. First, pursuant to Article 15(2) of the Rome Statute, the OTP receives “information from States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate”. It may also receive written or oral testimony at the seat of the Court. The OTP analyses the seriousness of the information received (see here, p. 8). The second phase marks the proper beginning of the PE: the OTP proceeds to a thorough factual and legal assessment to determine if the alleged crimes fall within the jurisdiction of the Court (see here). Phase 3 questions the admissibility of the case with respect to complementarity and gravity (see here and here, p. 8). The fourth and last phase addresses the question of the interests of justice: the OTP will not initiate an investigation if it considers that it would not serve the interests of justice, taking into account the gravity of the crimes and the interests of the victims (here).

It has to be mentioned that PEs serve additional purposes. According to the OTP, more than simply assessing whether there is sufficient basis to open an investigation, PEs also contribute to two overarching goals of the Statute (see here, p. 8). First, they contribute to ending impunity since they encourage national proceedings. Past experiences have shown that states often seek to avoid the exercise of the Court’s jurisdiction by initiating judicial prosecutions at a national level. When they do so, pursuant to Article 17(1)(a), the situation becomes inadmissible before the ICC, since the Court is complementary to national jurisdictions. Second, PEs also deter the prevention of future crimes, thus limiting the need for the Court’s intervention. The openings of PEs are very public and widely publicized, including through international and national media. Further, the annual publication of the OTP’s Report on Preliminary Examinations, which is made public and available on the Internet, contributes to share the outcomes of the ongoing PEs. Even if the dissuasive effect of the PEs is difficult to assess, as it would require measuring the prevalence of crimes that have not been committed, there is little doubt that it is real and strong in most of the examined countries.

Given the specific legal framework pertaining to PEs before the ICC, how has it been applied with respect to the situation of the Rohingya in Myanmar and Bangladesh? The second post will explain the novel jurisdictional issues that were faced by the ICC in this regard before it declared itself competent in a decision warmly saluted by civil society. However, the international community should not be too hasty with its rejoicing, as will be discussed in the third and final post.

This blogpost and Catherine Savard’s attendance at the 17^th Assembly of States Parties are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.