Critical Reading of Opening Preliminary Examinations in the ICC Independent Experts’ Review

[Mohammad H. Zakerhossein is an Assistant Professor of international criminal law at University of Tehran.]

In its eighteenth session in December 2019, the Assembly of States Parties of the International Criminal Court established the Independent Expert Review with the mandate to ‘identify ways to strengthen the ICC and the Rome Statute system in order to promote universal recognition of their central role in the global fight against impunity and enhance their overall functioning’. For this purpose, the Experts were asked to make ‘concrete, achievable and actionable recommendations aimed at enhancing the performance, efficiency and effectiveness of the Court and the Rome Statute system as a whole’.

In September 2020, the Experts issued its final Report. The Report does not present an exhaustive overview of all aspects of the Rome Statute System, but its findings “are focused on areas in need of improvement” (para. 20). One of these areas that drew the attention of Experts is the opening stage of a preliminary examination (PE). The Experts insist that “the greatest concern in terms of selection of situations for PEs” relates to the lack of balance between the increasing number of situations under a preliminary examination and the insufficiency of resources (para. 642). The Experts thus recommend that, “in order to address the disparity between the OTP resources and the high number of PEs resulting in investigations, the Prosecutor should consider adopting a higher threshold for the gravity of the crimes alleged to have been perpetrated. Gravity should also be taken into account at Phase 1 of PEs” (Recommendation 227).

The Prosecutor has some discretion in opening a preliminary examination. Paragraph 1 of Article 15 stipulates that the Prosecutor ‘may’ initiate an investigation proprio motu. However, there is no statutory clarification about the scope of such discretion. Given the silence of the Rome Statute, the OTP itself has offered some insight into the opening phase of preliminary examinations in its Policy Paper on Preliminary Examinations. Accordingly, in order to distinguish those situations that warrant investigation from those that do not, the OTP established a filtering process comprising four phases (para. 77): Phase 1 (initial jurisdiction assessment), Phase 2 (jurisdiction assessment), Phase 3 (admissibility requirements – complementarity and gravity pursuant to Article 17), and Phase 4 (interests of justice).

 In the OTP’s architecture, Phase 1 is an initial assessment of all information received under Article 15 communications. The main purpose of this phase, as stipulated by the OTP, is to filter out information on crimes that are manifestly outside the jurisdiction of the Court. Indeed, the Experts’ Report recalls “the initial selection of situations occurs before the opening of a PE” (para 636). Nevertheless, in spite of its existence and important function, this phase is not explicitly mentioned in the Rome Statute and this unnamed stage, as insisted by the Experts, is “entirely governed by the discretion and approach of the Prosecutor”. So the OTP accepts that there is a pre-pre examination stage with the mandate to filter out those situations that are manifestly outside of the Court’s jurisdiction. That is the only function of this initial phase recognized by the Prosecutor.

It deserves to be noted that, from a logical perspective, such an initial stage should be defined as a distinct stage from preliminary examination. The OTP Policy Paper admits that Phase 2 represents the formal commencement of a preliminary examination, but it is not logical to design a preliminary examination of four stages and then put its commencement at Phase 2. If Phase 1 is a part of a preliminary examination, it means that a PE opens as soon as information received is analyzed in Phase 1.  

According to the OTP Policy Paper, Phase 2 focusses on the jurisdiction requirement, asking whether there is a reasonable basis to believe that the alleged crimes fall within the subject-matter jurisdiction of the Court. Other jurisdictional considerations, namely territorial/national and temporal jurisdiction, are examined in this phase as well. The existence of Phase 2 with a jurisdictional mandate implies that the jurisdictional assessment in Phase 1 is limited and aims at filtering out what is manifestly outside of the Court’s jurisdiction. All other situations should go through Phase 2 for an assessment in more detail. It also should be emphasized that Phase 1 is exclusively a jurisdiction-oriented analyses. Therefore, there is no space in Phase 1 to assess the admissibility requirement. It is not logical to address the admissibility requirement, including the gravity threshold, in Phase 1 in order to determine whether the PE deserves to advance to later phases that focus on subject-matter jurisdiction (Phase 2) and admissibility (Phase 3). Doing so makes the filtering phases of preliminary examination redundant.

The Prosecutor’s decision about the situation of ISIS in Iraq and Syria proves such redundancy. In April 2015, the Prosecutor noted in her statement that personal jurisdiction existed because some nationals of State Parties were among the perpetrators of ICC crimes. However, the Prosecutor asserted that those bearing the most responsibility were nationals of non-member States. Given these facts, she concluded that “the jurisdictional basis for opening a preliminary examination into this situation is too narrow at this stage”. 

 The decision, however, suffered from serious deficiencies. First, the Prosecutor introduced a novel notion without any ground in the Rome Statute: namely the narrowness of jurisdiction. Jurisdiction is a binary matter; there is no third option, regardless of its broadness or narrowness. When a jurisdictional basis exists (nationality jurisdiction), the Prosecutor should initiate an investigation despite the fact that the nationality jurisdiction normally provides a narrower basis for the Court to exercise its jurisdiction, compared to territorial jurisdiction.

Second, the Prosecutor confused jurisdiction with the admissibility requirement. The Prosecutor argued that “at this stage, the prospects of my Office investigating and prosecuting those most responsible, within the leadership of ISIS, appear limited”. In this context, the Prosecutor concluded that there would be an overly narrow jurisdictional basis to open a PE. However, the prosecutorial strategy of focusing on most responsible relates to the admissibility assessment – Phase 3. The so-called “big fish” policy is a policy consideration for determining the gravity of a case; it is not a legal and jurisdictional threshold that limits the Court’s personal jurisdiction exclusively to those who bear the greatest responsibility. And even it was such a threshold, the Prosecutor still made a mistake, because assessing admissibility in Phase 1 is not consistent with the OTP Policy Paper.

Against the backdrop of the four-phase architecture designed by the OTP, the Experts recommend the Court insert the gravity assessment into Phase 1 assessments. This recommendation narrows the gateway to the “formal” PE stage and is intended to improve the quality of active investigations. Indeed, the Experts are of the view that having fewer investigations could “result in a more comprehensive approach regarding the number of cases and accused per situation; lead to a more consistent implementation of Outreach strategies and increase the potential for achieving a more meaningful impact on victims” (para 644).

The Experts’ recommendation regarding when to open a preliminary examination is consistent with the conservative approach in terms of deciding whether to open a preliminary examination adopted by OTP itself. In the 2016 Report on its PE Activities, the OTPS refers to situations “where alleged crimes are not manifestly outside the jurisdiction of the Court, but do not clearly appear to fall within its subject- matter jurisdiction”. In such situations, the Office will take into account “its prosecutorial strategy of focusing on those most responsible for the most serious crimes under the Court’s jurisdiction, and as a general rule, will follow a conservative approach in terms of deciding whether to open a preliminary examination”.

Nevertheless, neither the Experts’ recommendation nor the OTP’s conservative approach to opening a PE appear consistent with the Prosecutor’s obligations under the Rome Statute. Article 15(2) of the Statute obliges the Prosecutor to analyze the seriousness of the information received. According to paragraph 6 of Article 15, this analysis constitutes the preliminary examination stage. Therefore, opening a preliminary examination to assess all information received is an obligation rather than an option. [HK1] In fulfilling its obligation, the OTP as a duty-bearer should not interpret the scope of its obligation in favor of itself by adopting a conservative approach. Indeed, adding the gravity assessment to the criteria for determining whether to open a PE broaden the Prosecutor’s discretion to refuse to open a situation even if it manifestly falls within the Court’s jurisdiction.

It should be noted that such a broad authority would also be given to the OTP at a stage wherein there is no judicial scrutiny over the Prosecutor’s decisions and the Prosecutor is not accountable for her decision not to open a PE. In the Egypt situation, it became clear that there is no way to subject the Prosecutor’s decision to refuse to open a PE at an early phase of the process to judicial scrutiny.  The Pre-Trial Chamber in its decision on 12 September 2014 insisted that in the absence of a referral the Chambers do not have any power to supervise the Prosecutor’s decisions and determinations in pre-investigation stages, unless the Prosecutor’s decision not to open an investigation is based on the interest of justice requirement.

We should thus be reluctant to give the Prosecutor unfettered authority to decide about the fate of situations before formally opening a PE.  The Prosecutor should be able to decide not to open a PE, but only if crimes referred to in a communication are manifestly outside of the Court’s jurisdiction. In many scenarios, a preliminary examination is the only tool at the Court’s disposal to fight against impunity and to give voice to voiceless victims by recognizing their victimhood. So it is not reasonable to unnecessarily deprive the Court of a humble but necessary tool.

To resolve the problem of the number of PEs, which is of concern to the Experts and other stakeholders, prioritization would be more helpful than selection. With regard to cases, in 2016, the OTP developed a Case Selection Document in its Policy Paper on Case Selection and Prioritization. The Prosecution selects cases for prosecution among the provisional case hypotheses identified in the Case Selection Document. The Document, due to numerous cases that meet the statutory criteria referred to in Article 51, is also used to prioritized cases within a given situation. Such a document and mechanism could be used regarding situations too. The Prosecutor needs to develop a Situation Selection Document wherein those situations identified in Phase 1 are listed and included if they are not manifestly outside of the Court’s jurisdiction. Then, based on their gravity, they can be prioritized for opening preliminary examination. In this scenario, the Court would not be criticized because of its inaction towards mass atrocities. On the contrary, crimes would be monitored by the Court and their commission confirmed on a prima facia basis, but they would be subjected to preliminary examination only if they are graver and more feasible compared to other situations in the Document.