ICC preliminary examinations
The ICC prosecutor conducts preliminary examinations in order to determine whether a full ICC investigation is warranted.
The preliminary examination of a situation may be initiated on the basis of:
- Information sent by individuals, groups, states, intergovernmental organizations or NGOs
- A referral from a State Party or the Security Council
- A declaration lodged by a state not party to the Statute accepting the jurisdiction of the Court
The Rome Statute requires the ICC to maintain the highest standards of due process and fair trial. Over four phases, the prosecutor assesses whether a situation satisfies the jurisdiction and admissibility criteria for opening an investigation as set out by the Statute.
Even where the Court has jurisdiction, it will not necessarily act. According to the complementarity principle, national jurisdictions are meant to be the primary safeguards against impunity, responsible for investigating and prosecuting crimes under the Rome Statute.
The ICC Office of the Prosecutor (OTP) is responsible for determining whether there is reasonable basis to open an investigation considering the criteria established by the Rome Statute - these so-called 'preliminary examinations' include attention to complementarity efforts.
A key goal of the preliminary examinations is to encourage governments to themselves investigate and prosecute alleged grave crimes committed on their territories or by their citizens.
The preliminary examination, along with the later stages of the OTP's activities, plays a crucial part in the Court's role in deterring actual and potential perpetrators of grave violations.
Prosecutions can have a preventive impact on the perpetration of atrocities, and it all starts with the preliminary examination.
Preliminary examinations phases
Phase 1 – Initial assessment
The OTP will start a preliminary investigation of a situation that is not manifestly outside ICC jurisdiction. In its initial assessment, the OTP collects and verifies the seriousness of all relevant information needed to determine if there is a reasonable basis to proceed with a full investigation into alleged grave crimes committed by individuals in a given state.
The information gathered can include forensic evidence, satellite images, witness testimonies, government documents and orders, cell-phone interceptions, computer and email records, etc. The information should cover all facts that are relevant to the assessment of criminal responsibility.
Phase 2 - Jurisdiction
This is the formal opening of the preliminary examination: the Court will assess whether the crime committed is within its jurisdiction. This requires an assessment of temporal jurisdiction (when were the alleged crimes committed?), territorial or national jurisdiction (where were they committed or who committed them?) and material (subject-matter) jurisdiction (were ICC crimes committed?).
Phase 3 – Admissibility
Admissibility includes questions of both complementarity and gravity. Are the potential cases against individuals ‘admissible’ before the Court?
A gravity analysis involves the scale and nature of the crimes, and their impact. Gravity is tested on both quantitative and qualitative terms to determine if offenses rises to the level of Rome Statute crimes.
The complementarity analysis looks into whether relevant and genuine national proceedings already exist in relation to cases being considered for ICC prosecution. The ICC will only step in if the state in question is not investigating or prosecuting those suspected of having committed atrocities. These investigations and prosecutions also have to be genuine. The OTP will specifically look for any investigative efforts into those most responsible for crimes under the Court’s jurisdiction.
Phase 4 - Interests of Justice
In this final preliminary examination phase, the Court will assess if there are reasons to believe that an investigation would not serve the interests of justice, taking into account the gravity of the crimes and the interests of the victims. It is a balancing test, which might produce a reason not to proceed even where jurisdiction and admissibility requirements are satisfied. Would the interests of the victim be better served if the Court did not open an investigation?
Before deciding on whether to initiate an investigation, the OTP ensures that the concerned states and parties all have had an opportunity to provide information that they consider relevant. Once the OTP is convinced that all criteria established by the Rome Statute have been fulfilled, it has a legal duty to open an investigation.
