Preliminary examinations: A closer look at one of the most important parts of the ICC Office of the Prosecutor’s work

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]

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Women and girls must not be excluded from reparation in the Al Mahdi case

The International Criminal Justice Clinic at Melbourne Law School, run in partnership with Amnesty International, focuses on developing practical skills in gender analysis, trial monitoring, fair trial and victims’ rights advocacy.

One of the trials that we’ve been following this year is the Al Mahdi case, the first case in the International Criminal Court from the situation in Mali.

The recent reparations order in this case raises serious gender concerns, as student Adrienne Ringin argues this week on Amnesty International’s new human rights in international justice website.

As Adrienne’s post will be of interest to many Int Law Grrls readers, it’s my pleasure to cross-post it here.

ICC Appeals Chamber issues “unprecedented” decision on war crimes of rape and sexual slavery

The ICC Appeals Chamber, in a unanimous decision it described as “unprecedented”, has confirmed that the rape and sexual slavery of children by members the same armed group can be charged as war crimes under the Rome Statute.

The decision came in the case against Bosco Ntaganda, alleged former deputy chief of the staff of the Forces Patriotiques pour la Libération du Congo (FPLC).

The FPLC, one of the armed groups involved in the 2002-2003 conflict in Ituri, Democratic Republic of Congo, was also the focus of the ICC’s first trial, against convicted war criminal Thomas Lubanga Dyilo.

In that case, the (then) ICC Prosecutor was widely criticised for not bringing charges for the reported sexual abuse of children who had been unlawfully recruited by the FPLC – children that the ICC Office of the Prosecutor, and the ICC judges, refer to as “child soldiers”.

The prosecution later brought evidence of this sexual abuse in Lubanga’s trial. But because the prosecution had not referred to this evidence when it applied for confirmation of the charges, the majority of the Trial Chamber refused to determine Lubanga’s criminal responsibility for these crimes.

The Ntaganda case presented a chance to get a different result. Continue reading

Gender-based persecution on the International Criminal Court’s radar

Sexual and gender-based crimes were high on the ICC’s agenda in 2016 – a trend which looks set to continue this year. In March 2016, the Court handed down its first conviction for rape, and in December, its first trial to feature charges of forced pregnancy and forced marriage began.

There was also a focus on sexual and gender-based crimes in situations under preliminary examination, including the crime against humanity of ‘gender-based persecution’, which has never before been prosecuted by an international criminal tribunal.

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Women in Afghanistan, one of the two preliminary examinations where the ICC Office of the Prosecutor is reviewing information on gender-based persecution (Photo credit: Shah Marai / AFP).

This focus on gender-based persecution can be seen in the ICC Office of the Prosecutor’s most recent Preliminary Examinations Report, which gives an update on the ten situations currently under ‘preliminary examination’ (an initial filtering process, in which the ICC Prosecutor reviews information on alleged crimes and decides whether a full-scale investigation is warranted).

The report confirms that the Prosecutor is on the brink of deciding whether to open an investigation into the situation in Afghanistan, which has been under preliminary examination in the since at least 2007.

This investigation, if it goes ahead, will be historic. It will be the first time that any international criminal tribunal, past or present, has looked into war crimes by US nationals. It will also be the first investigation to specifically contemplate the crime against humanity of gender-based persecution – or the first one on public record, at least.  Continue reading