The Full Picture: Preliminary Examinations at the International Criminal Court

Sara Wharton,Rosemary Grey

doi:10.1017/cyl.2019.1

Abstract

AbstractThe International Criminal Court’s (ICC) Office of the Prosecutor (OTP) has described the preliminary examination as one of its “three core activities,” alongside investigating and prosecuting crimes under the Rome Statute of the International Criminal Court (Rome Statute). Honing in on this once-mysterious “core activity,” this article contributes to the recently expanding literature on preliminary examinations at the ICC by providing a much needed comprehensive picture of all preliminary examinations conducted to date. The twentieth anniversary of the court’s founding treaty, the Rome Statute, provides a timely opportunity for this review as part of the broader effort to take stock of the ICC’s achievements, failures, and future. The article demonstrates that, despite not having full investigatory powers at the preliminary examination stage, the OTP is very active during this phase. It interacts with a wide range of domestic and international actors and makes decisions on important legal issues that go to the heart of the ICC’s work. Paying close attention to preliminary examinations is therefore critical to understanding the OTP’s work, to understanding which actors engage with, and seek to “use,” the ICC, and to understanding important debates about the ICC’s legitimacy.

Highlights

The Office of the Prosecutor (OTP) at the International Criminal Court (ICC) has described preliminary examinations as “one of the Office’s three core activities,” alongside investigating and prosecuting crimes within the jurisdiction of the Court.[1]
In the fifteen years since the first prosecutor took office, the Office has opened 27 preliminary examinations, the most recent concerning crimes allegedly committed in the Philippines and Venezuela, as announced on 8 February 2018,2 and the alleged deportation of Rohingya people from Myanmar to Bangladesh, announced on 18 September
RESEARCH METHOD For this study, we conducted a review of all preliminary examinations opened by the ICC Prosecutor up until the 2018 Preliminary Examination Report (30 November 2018)

Summary

Introduction

The Office of the Prosecutor (OTP) at the International Criminal Court (ICC) has described preliminary examinations as “one of the Office’s three core activities,” alongside investigating and prosecuting crimes within the jurisdiction of the Court.[1]. The significance of preliminary examinations was not widely appreciated outside the Court, and there was little research on this pre-investigative process.[4] this began to change with increased public reporting on preliminary examinations by the OTP, and greater attention to this topic in media reporting on the Court These days the mere decision to open a preliminary examination can have a significant impact, including prompting two states (Burundi and the Philippines) to withdraw from the ICC’s founding treaty, the 1998 Rome Statute.[5] preliminary examinations have, in recent years, been identified as an important area of research[6] leading to a recent thought-provoking collection of essays on preliminary examinations[7] together with useful analyses of discrete parts of the preliminary examination puzzle, including the process for opening a preliminary examination,[8] the purpose of preliminary examinations,[9] their duration,[10] how the principles of complementarity,11 “positive complementarity”[12], and gravity[13] function at this stage of proceedings, and the limited scope for judicial review in preliminary examinations.[14]

Methods

Results

Conclusion