The Policy Paper on Preliminary Examinations: Ending Impunity Through 'Positive Complementarityy?

Abstract

This Article analyzes the Policy Paper on Preliminary Examinations issued by the Office of the Prosecutor (OTP) of the International Criminal Court (ICC). The Article describes the goals, principles and procedures set forth in the Paper, and discusses key questions and dilemmas relating to how the OTP approaches these in practice. In particular, the Article focuses on the interplay and synergies between ICC preliminary examinations and accountability mechanisms at the domestic level, often referred to as ‘positive complementarity’. Such an analysis is important already because the OTP itself and many scholars alike claim that a key goal of preliminary examinations involves ‘the ending of impunity, by encouraging genuine national proceedings’. Despite the attention being afforded the concept of ‘positive complementarity’, however, only few existing studies examine the extent to which this goal is being effectively pursued by the OTP at the preliminary examination phase and how ICC preliminary examinations may affect national authorities’ commitment to domestic accountability processes and otherwise impact the scope, nature and conduct of such processes. The Article concludes that, although limited in scope, existing empirically-based studies point to a more complex picture concerning the synergies between preliminary examinations and domestic accountability processes compared to that endorsed by the OTP. Utilizing the notions of ‘hand-over’ and ‘burden-sharing’ versions of complementarity, the Article observes that both versions of complementarity may face significant challenges in practice, especially in situations where there is no or only limited political at the national level to advance accountability for the crimes under ICC scrutiny. Yet, the Article also argues that the OTP may, through its monitoring, statements and encouragement at the preliminary examination phase, advance the rule of law in national jurisdictions in other subtle ways, for example by ‘lifting’ perceptions of the seriousness of the abuses under scrutiny to a new level.