Carsten Stahn joins us for this sixth contribution in our ongoing symposium, with EJIL:Talk!, on the ICC’s impacts on national justice. Carsten is a Professor of International Criminal Law and Global Justice at the Leiden Law School and the Programme Director of the Grotius Centre (The Hague).

It is a pleasure to contribute to this joint EJIL:Talk! and Justice in Conflict debate on ICC preliminary examinations (PEs). Elizabeth Evenson and Human Rights Watch (HRW) have done pioneering work in this field. I am grateful for the opportunity to offer a few reflections on the state-of-the art of PEs, certain points raised in the HRW reports, and some thoughts to re-visit ICC strategies, based on a joint research project with CILRAP/Morten Bergsmo.

“The line it is drawn, The curse it is cast”

Preliminary examinations operate at the intersection of law and politics. As Mark Kersten has illustrated, they constitute a form of productive power of the ICC. They frame narratives about conflict, shape the use of crime labels, entail classifications of armed violence or expressions of stigma or victimhood. The drafters of the Rome Statute of the International Criminal Court (ICC) have devoted relatively limited attention to the issue.

At other international criminal courts and tribunals, PEs had traditionally lesser importance, since the jurisdictional scope was pre-defined and complementarity had lesser space. At the ICC, policies and practices were largely developed through the managerial practices of the OTP. The goals of PEs were defined by prosecutorial strategy. The way in which they are conducted differ from national systems. PEs were not only treated as a gateway to investigations, but as a broader policy instrument to foster deterrence and incentivize domestic investigations and prosecutions. This approach is guided by noble intentions and the desire to make most of the ICC’s limited capacity. However, it poses difficult tensions and dilemmas.

PEs have essentially turned into a novel procedural stage of its own. The OTP has developed an elaborate system of assessment (i.e. a four-phase process) in its Regulations and Policy Papers, one which closely mirrors human rights monitoring. This process is designed to translate the complex reality of atrocity contexts into legal determinations, including the determination of jurisdiction, the determination of the crime-base, admissibility, or situational gravity.

Some the methodologies have come under critique. The ICC has accumulated a docket of highly delicate political situations, with limited analytical resources, restricted on-site access, lack of cooperation, or a clear exit strategy. The scope of situations varies from a single incident (e.g., North Korea, Comoros) to decade-long conflicts with long-standing historical roots (Afghanistan, Palestine). There is a bottleneck problem. Many situations have stayed under analysis for long periods of time, ranging from several years to over a decade. This may be helpful for expressive purposes, monitoring of violations, or complementarity objectives. But it can also have counterproductive effects. The OTP needs to navigate between political dialogue, strategic ambiguity, credibility of threat and vigilant monitoring. It can easily become an instrument of national politics. Skeptics have questioned to what extent the OTP should speculate on complementarity or deterrence outcomes, set benchmarks for domestic jurisdictions, or provide advice in transitional justice contexts. PEs should be approached with greater modesty.

“Come writers and critics …And keep your eyes wide”

Initially, the opening of a PE is a ‘quick-win’ for many sides. It is tempting for human rights institutions, civil society organizations and victims to call for an ever-growing list of ICC preliminary examinations. For them, the fact that a situation is under PE can be branded as a success. For states, PEs may be a convenient way to signal concern or moral outrage. For the ICC, PEs are a means to demonstrate political relevance in relation to atrocity or equality before the law. The OTP can use the unpredictability of the PE process to exercise influence over national justice processes, without having to ‘lock itself’ in or determine hard targets of investigations.

Over time, however, PEs may become a trap, due to prolonged silence, lack of decision-making or false or inflated expectations. The ICC’s leverage may be impeded by the relatively stable number of open PEs (i.e. around 10 at any given moment in time) and the phase-based approach to assessment, which makes OTP action predictable. The effects have remained mixed. The opening of PEs involving ‘Big Powers’ did not necessarily detract from African critiques of the geographical distribution of ICC scrutiny. In several contexts, the OTP has faced political deadlock during the PE or after its decision to move to investigations (e.g., Burundi, Philippines).

Human Rights Watch is one of the first organizations to have analyzed policies on preliminary examinations with a critical eye. The first report, entitled “Course Correction”, argued that the desire to steer national justice approaches through a policy on PEs may backfire over time:

While the fact that a situation may come before the ICC initially provides an incentive for authorities to stop crimes or to start their own investigations, that leverage is likely to wane with the passage of time.

The second report, “Pressure Point”, provides a useful analysis of impact in situations. It questions the assumption of whether the OTP “can fundamentally alter political dynamics” on its own. It shows that the impact of PEs is heavily dependent on factors that are not under ICC control, such as “political support for accountability”, the scope of the underlying crime-base, “public demand and interest in accountability” and the presence of international partners. It clarifies that deference to domestic justice may open the ICC to manipulation, delay justice, and complicate access to evidence at the investigation. It also raises highly pertinent questions about staffing and resources. Human Rights Watch openly admits that the “demand for ICC action continues to outpace the resources it has available”. It is appropriate to raise the question as to whether the existing institutional structures allow OTP analysts and staff to gain sufficient context and expertise in relation to the uniqueness of each situation, in order to understand the factors and interests driving conflict or the potential ramifications of ICC action.

There are also two points of structural critique. The first relates to complementarity as such. The report assumes, perhaps too uncritically at the outset, that complementarity, and notably ‘positive complementarity’ should be an objective of PEs. The very notion remains contested. The findings of the report might be understood as a call of caution towards strategies of positive complementarity. Experiences from other contexts (e.g., Kenya, Uganda) suggest that complementarity may easily lead to an imitation of ICC approaches or short-term domestic accountability strategies that are geared at satisfying the ICC and international audiences, rather than more structural concerns. Critical scholarship suggests that framing accountability dilemmas in the language and institutional dynamics of complementarity may reduce complexity of the underlying problems or stifle alternative conceptions of justice.

A second concern is the report’s call for ‘increased transparency’ and publicity. The report rightly stresses the need to provide feedback to senders of communications. However, it might go a step too far in its view of PEs as a tool to promote “interest in accountability among the general public, civil society, and international donors”. As Immi Tallgren has cautioned, such an approach might easily turn the ICC into “a high-tech version of Durkheimian functionalism”, which relies “on media and modern communications technologies to reflect individual and collective representations reaffirming beliefs and values threatened by serious international crimes”. Opponents argue that the OTP has already gone too far in this direction. They suggest that the OTP’s decision to determine whether or not to proceed should remain the main focus of PEs. Too much publicity may undermine the surprise element of the ICC, create unrealistic expectations among victims or compromise legitimate interests of states or actors affected who have limited avenues to react to allegations and analyses presented in PE reports.

“As the present now Will later be past”

There are more and more voices who fear that the OTP made more of PEs than they are or ought to be – or who suggest at least a critical reflection of existing policies and practices. Some of the concerns reflected in a new double volume on “Quality Control in Preliminary Examination”, available open access to readers (Vol. 1 and Vol. 2). It stresses the need to take a step back from a purely legalistic approach. It also contains some means to re-imagine practices. I can only introduce a few ideas here.

First, it is important to develop strategies to better deal with deadlock. Situations like Palestine, Afghanistan, or Myanmar show that preliminary examinations can easily get stuck in complicated jurisdictional analysis. There is a chicken and egg problem here. What comes first: preliminary examination or jurisdiction? The Statute does not provide a general advisory procedure at this stage (see Dissent Judge Perrin De Brichambaut). However, as the Myanmar situation illustrates, it may be helpful in some cases to seek early guidance from the start by the Pre-Trial Chamber in an inclusive process, even before States can defer proceedings under Art. 18 or bring a formal challenge to jurisdiction. Such an option requires further procedural clarification in the future (e.g., potential prejudicial effect, right to appeal, impact on later challenges). If a PE is prolonged, such as in the situation in Afghanistan, it may be appropriate to consider strategies in relation to a partial opening of an investigation, in order to keep the ‘golden hour of evidence collection, while keeping a broader focus under PE.

In light of the diversity of situations, it remains controversial as to whether there should be a strict time limit for PEs, forcing the OTP to take a decision in the positive or the negative, with the possibility of reconsideration in light of new information and material at a later stage. As the book sets out, in the future, new technologies may facilitate the determination of the crime-base and context in the future. But it is helpful to develop internal benchmarks and provide for better channels of communication where situations are pending for years. If the recently adopted approach to start victim outreach during the PE stage is repeated in other contexts than Palestine, it will inevitably enhance pressure on the OTP to make a decision.

Third, there may a need for more flexibility in the consideration of PE criteria (jurisdiction, admissibility, gravity, and interests of justice). They do not always have to be considered in a strictly sequenced fashion, but are often interrelated. The ‘phase-based’ approach to PEs is logically coherent, but might deprive the OTP of flexibility (e.g., to move to “interests of justice’ criteria). Several authors in the book (e.g., Ana Cristina Rodriguez Pineda, Asaf Luban) make the important point that transparency should be understood more as a “sliding scale”.

Structurally, it is important to adjust means to the Court’s ends. If the ICC seeks to maintain its “thick approach” to PEs, involving policy rationales such as deterrence or complementarity, it must be given the means to do so. This requires further investment into structures, including consultation, verification, and monitoring of domestic action as well as, possibly, even moreinteraction with other human rights or accountability mechanisms. It is equally important to develop criteria and a process for the closure of PEs, and a completion strategy for individual situations more generally.

“For the times they are a-changin’”

Finally, strategies on PEs cannot be viewed in isolation of broader debates on prosecutorial strategy as a whole. In the formative years of the ICC, it was appealing for the ICC to attract situations and cases. But over time, the Court faces a “wide vs. deep” problem. Many existing ICC situations are based on open-ended referrals or do not simply go away. The justice landscape increases in diversity, with new regional or hybrid bodies emerging. In this context, lesser ICC PEs and more investigations leading to a sequence of cases per situation may be a better strategy. In many existing situations, the ICC has stayed on the surface. It has closed some PEs without investigation or confined itself to a few thematic investigations and prosecutions in contexts where PEs went on to investigation. This comes at the price of a lack of sustainability. It might be helpful to pursue some situations in greater depth in order to leave a lasting footprint or gradually build accountability upwards. This is a clear policy lesson from the much-debated acquittal in the Bemba case.