The Chief Prosecutor of the International Criminal Court (ICC) recently told journalists that she would not provide a time-frame for the ICC’s preliminary examination into alleged war crimes perpetrated in Palestine during the 2014 war in Gaza. Officials in Israel may derive some comfort in knowing that ICC action against the Israeli Defence Forces (IDF) isn’t coming any time soon. But Tel Aviv will certainly take little-to-no comfort in knowing that an official investigation and the issuance of arrest warrants could come at any time — and likely with little warning. At the same time, it may be a decade or more before victims and survivors in Israel and Palestine know whether or not they’ll ever get ICC justice for the crimes perpetrated against them. This brings forward an important question: is it fair to keep states in the potential purgatory that is the preliminary examination stage of an ICC intervention?
It stands that states under preliminary examination want to have some idea of what that entails — including how long they might be under the microscope of ICC investigators. Without a doubt, one of the most potentially combustable interventions by the Court would be in Palestine. Both opponents and champions of a role for the ICC in Palestine can agree on that. Predictably, then, observers want to know if and when such an intervention might come. According to The Jerusalem Post, ICC Chief Prosecutor Fatou Bensouda wasn’t about to divulge that information and would not even say whether the preliminary examination would be concluded by the time her tenure ran out in 2021 – over five years from now. Bensouda insisted there was no time-frame for her office’s examination:
I cannot sit here and say that it will take seven years, or it will take ten years or it will take any number of years…all of this depends on the facts and the circumstances. The preliminary examination cannot be given a timeline.
Interestingly, if somewhat puzzlingly, on a visit to the Palestine’s Mission to The Netherlands last year, Ambassador Nabil Abuznaid responded to my students by declaring he believed the ICC would not act or come to any significant decision in “less than ten years.”
Legally, Bensouda is on solid ground. The Rome Statute says nothing about how long a preliminary examination should take. While the yearly Preliminary Examination reports released by the Office of the Prosecutor indicate that the institution views increased transparency in its activities as useful and important, the Office is under no legal obligation to be forthright about its preliminary examinations. Some would argue that not divulging timelines is politically astute. After all, no prosecutor would voluntarily pigeon-hole themselves by declaring a cut-off date for a decision.
But is it fair? Should preliminary examinations be allowed to persist indefinitely? The domestic analogy leaves one dumbfounded. Imagine someone being informed by legal authorities that they were under investigation for murder and that they would be seen as a potential suspect indefinitely. At some point, an arrest warrant might be issued for the individual in question. But it also might not. The individual has no ability, let alone right, to know. In this scenario, neither does the victim or survivor. For a potentially indefinite period of time, they are told that justice is on the horizon. Or it might not be.
Of course, using a domestic analogy to measure or illustrate international phenomena is limited and problematic. But still, it seems troublesome to potential targets of prosecution, affected communities in general, as well as the victims and survivors of international crimes, to let preliminary examinations drag on indefinitely. Granted, the ICC has closed some preliminary examinations, most recently in Honduras. However, of its long-lasting examinations like Afghanistan and Colombia, it has often been said that they are left on the ‘low-heat’ of preliminary examination status as a means for the Court to be able to say it is interested and active in those situations and not because it actually is.
This issue of how long preliminary examinations should last was raised last year at a conference organized by the inestimable Carsten Stahn and his team at Leiden University. There, a number of participants raised the possibility of adopting reasonable timelines. The most convincing version of this argument, at least in my view, essentially prescribed a general time limitation on how long prosecutors would have to conduct a preliminary examination. Here, somewhere between three to five years would be considered fair, although some suggested a one-year time period (I think this is far too little). After the initial period of time passed, the Office of the Prosecutor would have three options: 1) close the preliminary examination; 2) proceed to an official investigation; or 3) apply to judges for an extension of the preliminary examination for an additional period of time, perhaps somewhere between 2 – 3 years. During such applications — which, if the record of preliminary examinations to date is any indication, would regularly be filed — those states under scrutiny as well as victims’ representatives would be permitted to file their own declarations as to whether to proceed to an official investigation. At the conference, there were predictable disagreements regarding the details but, as per the conference’s report, there seemed to be widespread agreement that “the OTP has a duty to decide within a reasonable time whether or not to proceed to investigation” and that preliminary examinations couldn’t last forever.
There are good reasons to challenge the notion that preliminary examinations should last indefinitely and that the Office of the Prosecutor should alone decide how long they take — without direct input from victims, states or, for that matter, judicial overview. But there are potential downsides and dangers to consider. The most obvious would be that a highly restricted preliminary examination could lead to less cooperation as states under scrutiny would choose to ‘wait out the clock’. At the same time, the strategic timing of opening official investigations would be curtailed by restricting preliminary examinations, potentially affecting the possibility of the Court having sufficient resources for an effective investigation as well as achieving cooperation from relevant actors. Moreover, it may be that in some cases, it is precisely the indefinite nature of a preliminary examination that actually galvanizes domestic judicial action to hold relevant perpetrators accountable. Nevertheless, these very valid issues could be considered as factors by ICC Judges if and when extensions for preliminary examinations were applied for.
The devil is always in the details. But as the ICC matures and commits itself to being a more transparent and accountable institution, thinking through how it can and should conduct preliminary examinations would be a timely and welcome endeavour. The most convincing argument for a more restrictive approach to preliminary examinations, and one in line with a Court that sees itself as existing and working “for victims”, is that it would give an opportunity for victims and survivors to participate more directly in a process that ultimately will determine whether or not they’ll ever witness ICC accountability or not. The victims and survivors of crimes in Israel, Palestine, -along with those in other situations under preliminary examination, shouldn’t have to wait in purgatory.