The International Criminal Court (ICC) investigates grave crimes of international concern such as war crimes, genocide and crimes against humanity, in line with the Rome Statute, its guiding treaty.
While individual countries have primary responsibility for addressing these crimes, the ICC effectively steps in and assumes jurisdiction when nothing or not enough is being done at a national level.
In cases where the Court has jurisdiction, the Office of the Prosecutor (OTP) of the ICC conducts preliminary examinations to determine whether there is a reasonable basis to proceed with an investigation, in line with the Rome Statute principles. This includes assessing whether the crimes were committed after 1 July 2002 (the date of the entry into force of the Rome Statute), and the date of entry into force for an acceding State.
In its Policy Paper on Preliminary Examinations, the OTP provides insight into the general principles and factors guiding the conduct of preliminary investigations.
When is an ICC preliminary examination initiated?
A preliminary examination may be initiated on the basis of:
(a) information sent by individuals or groups, States, intergovernmental or non-governmental organisations;
(b) a referral from a State Party or the Security Council; or
(c) a declaration accepting the exercise of jurisdiction by the Court pursuant to article 12(3) lodged by a State which is not a Party to the Statute.
General principles
The preliminary examination process is conducted on the basis of the facts and information available, and in the context of the overarching principles of independence, impartiality and objectivity.
Independence
The OTP must act independently of instructions from any external source. While the Office interacts with and may seek information from States, the U.N. and other organisations, any information received must be subject to critical analysis and evaluation.
Impartiality
Consistent methods and criteria must be applied, irrespective of the States or parties involved.
Objectivity
The Office must investigate incriminating and exonerating circumstances equally in order to establish the truth. All relevant parties should be given the opportunity to provide information to the Office.
Statutory Factors
A number of factors are applied at the preliminary examination stage in order to determine whether there is a reasonable basis to proceed with an investigation, based on the information available.
Jurisdiction
The Prosecutor must determine whether there is a reasonable basis to believe that a crime has been, or is being committed, which is within the jurisdiction of the Court.
Admissibility
The Prosecutor must be satisfied as to admissibility on both complementarity and gravity before proceeding.
Complementarity
This relates to whether genuine investigations and prosecutions have been or are being conducted in the State concerned. The absence of national proceedings is sufficient to make the case admissible, so long as admissibility on gravity is also satisfied.
Gravity
An assessment is conducted (including both quantitative and qualitative considerations) to determine whether a case is of sufficient gravity to justify further action by the Court. This ensures that the Office focuses its efforts objectively on those most responsible for the most serious crimes.
Interests of Justice
The interests of justice are only considered where the requirements of jurisdiction and admissibility are met. While jurisdiction and admissibility are positive requirements, the interests of justice provide a potentially countervailing consideration that may give a reason not to proceed.
The OTP will proceed unless there are specific circumstances which provide substantial reasons to believe that the interests of justice are not served by an investigation at that time.
The Office will consider the interests of victims, community, religious, political or tribal leaders, States, intergovernmental and non-governmental organisations.
How is an ICC preliminary examination conducted?
Once all general principles and statutory criteria have been satisfied, a preliminary examination may be initiated.
Initiation of Preliminary Examination
This may include the OTP receiving information on crimes by appropriate sources, referrals from States Parties or the Security Council, or declarations accepting the exercise of jurisdiction by the Court.
Procedure: 4 key phases
In order to distinguish those situations that warrant investigation from those that do not, the Office has established a filtering process comprising four phases:
- Phase 1: Initial assessment of all information on alleged crimes received to analyse the seriousness of information received and identify jurisdictional considerations
- Phase 2: Thorough assessment of crimes to identify cases potentially falling within the jurisdiction of the Court
- Phase 3: Examining the admissibility of potential cases in terms of complementarity and gravity
- Phase 4: Examining the interests of justice
Preliminary Examination Activities
At the preliminary examination stage, the OTP does not have investigative powers and cannot compel cooperation. Activities that may be conducted include requesting information from reliable sources and undertaking field missions to the territory concerned, for the purpose of analysing the seriousness of the information received.
Termination of Preliminary Examination
There is no specific time period for the completion of a preliminary examination.
If, after a preliminary examination, the Prosecutor concludes that the information available does not provide a reasonable basis for an investigation, the Office will inform those who provided the information, and make its decision public.
If it is determined that there is a reasonable basis to initiate an investigation, the investigation stage may begin which includes gathering and examining evidence, questioning suspects, victims and witnesses.
Policy objectives
The ICC’s policy on preliminary examinations has 3 key objectives:
Transparency
Regularly report on preliminary examination activities to promote a better understanding of the process and manage expectations.
Ending Impunity
ICC working together with national authorities to end impunity. It is reiterated that States bear the primary responsibility for preventing and punishing crimes, and that “the ICC must fill the gap left by the failure of States to satisfy their duty.”
Prevention
Early interaction with States and relevant organisations to address upsurges of violence, including issuing public statements of deterrence, putting perpetrators on notice and promoting national proceedings, helps to prevent reoccurrence of crimes.
Key takeaways
The International Criminal Court steps in to address grave international crimes such as war crimes, genocide and crimes against humanity, where national authorities fail to do so. The first step is conducting a preliminary investigation to ensure that the Court’s guiding principles are satisfied, and that there is a reasonable basis to proceed with an investigation. Preliminary investigations represent a critical step towards ending impunity and preventing the most serious crimes of concern to the international community.
