World: Report on Preliminary Examination Activities 2019
INTRODUCTION
The Office of the Prosecutor (“Office” or “OTP”) of the International Criminal Court (“Court” or “ICC”) is responsible for determining whether a situation meets the legal criteria established by the Rome Statute (“Statute”) to warrant investigation by the Office. For this purpose, the OTP conducts a preliminary examination of all communications and situations that come to its attention based on the statutory criteria and the information available in accordance with its Policy Paper on Preliminary Examinations.2. The preliminary examination of a situation by the Office may be initiated on the basis of: (i) information sent by individuals or groups, States, intergovernmental or non-governmental organisations; (ii) a referral from a State Party or the United Nations (“UN”) Security Council; or (iii) a declaration lodged by a State accepting the exercise of jurisdiction by the Court pursuant to article 12(3) of the Statute.
Once a situation is thus identified, the factors set out in article 53(1) (a)-(c) of the Statute establish the legal framework for a preliminary examination.2 This article 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, either territorial or personal, and material); admissibility (complementarity and gravity); and the interests of justice.
Jurisdiction relates to whether a crime within the jurisdiction of the Court has been or is being committed. It requires an assessment of (i) temporal jurisdiction (date of entry into force of the Statute, namely 1 July 2002 onwards, date of entry into force for an acceding State, date specified in a UN Security Council referral, or in a declaration lodged pursuant to article 12(3) of the Statute); (ii) either territorial or personal jurisdiction, which entails that the crime has been or is being committed on the territory or by a national of a State Party or a State not Party that has lodged a declaration accepting the jurisdiction of the Court, or arises from a situation referred by the UN Security Council; and (iii) subjectmatter jurisdiction as defined in article 5 of the Statute (genocide; crimes against humanity; war crimes, and aggression).
Admissibility comprises both complementarity and gravity.
Complementarity involves an examination of the existence of relevant national proceedings in relation to the potential cases being considered for investigation by the Office. This will be done bearing in mind the Office’s prosecutorial strategy of investigating and prosecuting those most responsible for the most serious crimes. Where relevant domestic investigations or prosecutions exist, the Office will assess their genuineness.
Gravity includes an assessment of the scale, nature, manner of commission of the crimes, and their impact, bearing in mind the potential cases that would likely arise from an investigation of the situation.
The “interests of justice” is a countervailing consideration. The Office must assess whether, taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.
There are no other statutory criteria. Factors such as geographical or regional balance are not relevant criteria for a determination that a situation warrants investigation under the Statute. As long as universal ratification is not yet a reality, crimes in some situations may fall outside the territorial and personal jurisdiction of the ICC. This can be remedied only by the relevant State becoming a Party to the Statute or lodging a declaration accepting the exercise of jurisdiction by the Court or through a referral by the UN Security Council.
As required by the Statute, the Office’s preliminary examination activities are conducted in the same manner irrespective of whether the Office receives a referral from a State Party or the UN Security Council, or acts on the basis of information on crimes obtained pursuant to article 15 of the Statute. In all circumstances, the Office analyses the seriousness of the information received and may seek additional information from States, organs of the UN, intergovernmental and non-governmental organisations and other reliable sources that are deemed appropriate. The Office may also receive oral testimony at the seat of the Court. All information gathered is subjected to a fully independent, impartial and thorough analysis.
It should be recalled that the Office does not possess investigative powers at the preliminary examination stage. Its findings are therefore preliminary in nature and may be reconsidered in the light of new facts or evidence. The preliminary examination process is conducted on the basis of the facts and information available. The goal of this process is to reach a fully informed determination of whether there is a reasonable basis to proceed with an investigation. The ‘reasonable basis’ standard has been interpreted by Pre-Trial Chamber (“PTC”)
II to require that “there exists a sensible or reasonable justification for a belief that a crime falling within the jurisdiction of the Court ‘has been or is being committed’”.In this context, PTC II has indicated that all of the information need not necessarily “point towards only one conclusion.” 5 This reflects the fact that the reasonable basis standard under article 53(1)(a) “has a different object, a more limited scope, and serves a different purpose” than other higher evidentiary standards provided for in the Statute. 6 In particular, at the preliminary examination stage, “the Prosecutor has limited powers which are not comparable to those provided for in article 54 of the Statute at the investigative stage” and the information available at such an early stage is “neither expected to be ‘comprehensive’ nor ‘conclusive’.” Before making a determination on whether to initiate an investigation, the Office also seeks to ensure that the States and other parties concerned have had the opportunity to provide the information they consider appropriate.
There are no timelines provided in the Statute for a decision on a preliminary examination. The Office takes no longer than is necessary to complete a thorough assessment of the statutory criteria to arrive at an informed decision. Depending on the facts and circumstances of each situation, the Office may decide either (i) to decline to initiate an investigation where the information manifestly fails to satisfy the factors set out in article 53(1) (a)-(c); (ii) to continue to collect information in order to establish a sufficient factual and legal basis to render a determination; or (iii) to initiate the investigation, subject to judicial review as appropriate.
In order to promote transparency of the preliminary examination process, the Office issues regular reports on its activities, and provides reasons for its decisions either to proceed or not proceed with investigations.
In order to distinguish the situations that do warrant investigation from those that do not, and in order to manage the analysis of the factors set out in article 53(1), the Office has established a filtering process comprising four phases. While each phase focuses on a distinct statutory factor for analytical purposes, the Office applies a holistic approach throughout the preliminary examination process.
Phase 1 consists of an initial assessment of all information on alleged crimes received under article 15 (‘communications’). The purpose is to analyse the seriousness of information received, filter out information on crimes that are outside the jurisdiction of the Court and identify those that appear to fall within the jurisdiction of the Court. In practice, the Office may occasionally encounter situations where alleged crimes are not manifestly outside the jurisdiction of the Court, but do not clearly fall within its subject-matter jurisdiction. In such situations, the Office will first consider whether the lack of clarity applies to most, or a limited set of allegations, and in the case of the latter, whether they are nevertheless of such gravity to justify further analysis. The Office will then consider whether the exercise of the Court’s jurisdiction may be restricted due to factors such as a narrow geographic and/or personal scope of jurisdiction and/or the existence of national proceedings relating to the relevant conduct. In such situations, it will endeavour to give a detailed response to the senders of such communications outlining the Office’s reasoning for its decisions.
Phase 2 focuses on whether the preconditions to the exercise of jurisdiction under article 12 are satisfied and whether there is a reasonable basis to believe that the alleged crimes fall within the subject-matter jurisdiction of the Court. Phase 2 analysis entails a thorough factual and legal assessment of the alleged crimes committed in the situation at hand, with a view to identifying potential cases falling within the jurisdiction of the Court. The Office may further gather information on relevant national proceedings if such information is available at this stage.
Phase 3 focuses on the admissibility of potential cases in terms of complementarity and gravity. In this phase, the Office will also continue to collect information on subject-matter jurisdiction, in particular when new or ongoing crimes are alleged to have been committed within the situation.
Phase 4 examines the interests of justice consideration in order to formulate the final recommendation to the Prosecutor on whether there is a reasonable basis to initiate an investigation.
- In the course of its preliminary examination activities, the Office also seeks to contribute to two overarching goals of the Statute: the ending of impunity, by encouraging genuine national proceedings, and the prevention of crimes, thereby potentially obviating the need for the Court’s intervention. Preliminary examination activities therefore constitute one of the most cost-effective ways for the Office to fulfil the Court’s mission.
Summary of activities performed in 2019
This report summarises the preliminary examination activities conducted by the Office between 1 December 2018 and 30 November 2019.
During the reporting period, the Office completed and closed one preliminary examination. On 4 July 2019, the Office requested authorisation from Pre-Trial Chamber III to proceed with an investigation into the situation concerning the alleged deportation of the Rohingya people from the Republic of the Union of Myanmar (“Myanmar”) to the People’s Republic of Bangladesh (“Bangladesh”). Such authorisation was granted on 14 November 2019.
On 12 April 2019, Pre-Trial Chamber II (“PTC II”) rejected the request of the Prosecutor to proceed with an investigation of the situation in the Islamic Republic of Afghanistan. The Prosecutor requested leave to appeal the decision, which was subsequently granted by PTC II on 17 September 2019. The Prosecutor’s brief was filed on 30 September 2019, and an appeal hearing has been set down for 4-6 December 2019. The Appeals Chamber has invited the participation of various amici curiae, and is also seized of submissions by the legal representatives of victims who made representations before PTC pursuant to article 15(3) of the Statute.
With respect to the situation on the registered vessels of the Union of the Comoros (“Comoros”), the Hellenic Republic and the Kingdom of Cambodia, on 2 September 2019, the Appeals Chamber dismissed the appeal of the Prosecutor against Pre-Trial Chamber I (“PTC I”)’s decision setting aside the Prosecutor’s reconsideration, pursuant to rule 108(3) of the Rules, of her determination that there was no reasonable basis to proceed in the situation referred by the Comoros. The Appeals Chamber directed the Prosecutor that she must apply the legal interpretations of the majority of PTC I, as it was composed in 2015, and to notify PTC I of her reasoning and conclusions by 2 December 2019, which have since been filed.
The Office further continued its preliminary examinations of the situations in Colombia, Guinea, Iraq/United Kingdom (“UK”), Nigeria, Palestine, the Philippines, Ukraine, and Venezuela. During the reporting period, the Office sent preliminary examination missions to Bangladesh, Guinea, Nigeria and Ukraine, and held numerous consultations at the seat of the Court with State authorities, representatives of international and non-government organisations, article 15 communication senders and other interested parties.
Pursuant to the Office’s Policy Paper on Sexual and Gender-based crimes and Policy on Children, during the reporting period, the Office conducted, where appropriate, an analysis of alleged sexual and gender-based crimes and crimes against children that may have been committed in various situations under preliminary examination and sought information on national investigations and prosecutions by relevant national authorities on such conduct.
