How Long Can the ICC Keep States in the Purgatory of Preliminary Examinations?

Children walk along a street in a heavily damaged neighbourhood in Gaza (Photo: AP)

Children walk along a street in a heavily damaged neighbourhood in Gaza (Photo: AP)

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.


About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in Gaza, International Criminal Court (ICC), International Criminal Justice, International Law, Israel, Preliminary Examinations. Bookmark the permalink.

12 Responses to How Long Can the ICC Keep States in the Purgatory of Preliminary Examinations?

  1. Barrie Sander says:

    Thanks Mark – an interesting post as always. Realistically, I think that it is impractical and unhelpful to impose a time limit on preliminary examinations given the uniqueness of the international criminal context, in particular:

    –> Complementarity considerations, which may require working with national authorities over long periods of time (e.g. Colombia); and

    –> The dependence of the Prosecutor on State cooperation, which means she may face difficulties obtaining reliable evidence due to e.g. security concerns (for instance, where conflicts are ongoing such as in Afghanistan) and obstruction from States (where ICC intervention is not welcome such as in Sudan).

    With these considerations in mind, one could argue that the ability of the ICC Prosecutor to prolong the period of preliminary examinations is a useful power in the Prosecutor’s toolkit for enabling the Prosecutor to act strategically and for maintaining some degree of pressure on States to cooperate whether through initiating domestic investigations or providing access to evidence. Moreover, the recent successful request to initiate an investigation into the Georgia situation demonstrates that once, for example, the existence and genuineness of national investigations have been found wanting, the ICC Prosecutor is prepared to move the process forward where feasible.

    If we want to see swifter movement on whether to initiate investigations, the solution is not to impose unrealistic time limits, but to provide the ICC with better assistance in obtaining cooperation from States and increased funding to take on more concurrent investigations. As we well know, however, there is a lack of political will on both fronts, so the Prosecutor is somewhat doomed to be perennially hamstrung by the material limits of the international community.

    • Mark Kersten says:

      Thanks for the comment, Barrie.

      I agree, of course, about the importance of both complementarity as well as achieving cooperation and how this fits into the preliminary examination. I suggested both in the piece. But this piece can’t be read as a suggestion to “impose unrealistic time limits”. If anything it’s about overview and transparency. To your points, what I don’t understand is why, as a result of these complementarity and cooperation, the OTP should receive carte blanche with indefinite terms for its preliminary examinations without any judicial overview. Specifically, after 3-5 years (which is a long time and long than most proposed), why couldn’t the OTP explain these ongoing issues of complementarity and cooperation to Judges in a request to, in your words “prolong” the preliminary examination stage? It may be that I’m missing something from your comment and that what you are actually saying is that the unpredictability of an indefinite examination period without any oversight is itself somehow strategically useful. But I think that would have to spelled out clearly and reasoned against an approach that required periodic overview and participation from victims, survivors and relevant actors (who might then be *encouraged* to cooperate!).

      • Barrie Sander says:

        Hi Mark

        Yes, you’re quite right. I’ve re-read your piece and see on reflection how it is directed towards improving transparency. From that perspective, I can see how adding an extra level of oversight would do minimal harm, whilst providing an avenue for victims and other relevant actors to express their views on an ongoing preliminary examination. I agree that this could improve transparency and the accountability of the Prosecutor.

        That said, I think that in practice the introduction of a requirement for the Prosecutor to apply to judges to extend the length of a preliminary examination for renewable reasonable periods of time is likely to have minimal impact in preventing the indefinite extension of such examinations, precisely because of the reasons I referred to in my comment.

        It is difficult to imagine a situation in which the judges would not renew a preliminary examination where the Prosecutor is engaged in ongoing complementarity discussions with national authorities (Colombia); likewise, it is hard to envisage the judges concluding that because the security situation in a State is challenging (Afghanistan) or a relevant State is not cooperating (Sudan), therefore the Prosecutor should not be permitted to renew her preliminary examination (a conclusion which would have the problematic effect of encouraging non-cooperation with the Prosecutor).

        As such, in the very situations where the renewal would most likely be required, the imposition of such a requirement would be unlikely to provide much insight into when the initiation of an investigation is likely to occur and would be unlikely to prevent the indefinite extension of preliminary examinations.

        Therefore, whilst I agree that such a requirement would improve transparency, I don’t see how it would respond to the challenge you refer to in your final sentence: “The victims and survivors of crimes in Israel, Palestine and in other situations under preliminary examination shouldn’t have to wait indefinitely.” The indefinite wait for justice (within the paradigm of the ICC at least) can only really be prevented by improving State cooperation: the imposition of a renewal requirement is likely to add little to that end.

      • Barrie Sander says:

        Small addendum (for the avoidance of doubt): my reference to Sudan as an example of a non-cooperating State is not a perfect fit for our discussion since Sudan is an example of non-cooperation in relation to a situation already under investigation rather than a situation under preliminary examination, but the general point stands.

  2. el roam says:

    Thanks for the post Mark . I agree with you generally speaking .It is just that you compare domestic prosecution span, and international one, and claim, vaguely that one can’t be compared with the other of course!! And it is true of course !!

    Yet, one should insist on right definitions and distinctions, in order to produce solutions.

    In international investigations of such, we deal with : remote places, foreign languages, different judiciaries and laws, being acquainted with history and strange cultures. All that produce hell of complications .

    So , in accordance , what can be the solution for that issue of prolonged investigations, caused by the issues mentioned :

    Outsourcing !! Simple as that : The prosecutor needs to define a new phase ( technically only ) : Pre – preliminary investigation . A law firm, national local one , reliable one, professional one , would prepare for the prosecutor:

    Background , domestic law , history , potential liability and so forth. At the end , it is submitted to her , and she can access the situation , with far greater better preparation and understanding , while main issues are already more focused .

    So, it can take much less time for the prosecutor , to reach decisions ( for a local or domestic law firm , no more than one year of intensive work is needed) .

    And what about bias ?? it is simple :

    Two law firms, one indicting and implicating, the other: acquitting , and she does cross examine both contradictory findings , in her own manner and understanding.
    Even in terms of budget , one year , two law firms , would cost less than 5- 10 years of ICC investigation I believe .

    P.S. : The Rome statute , doesn’t bar such attitude or idea , but the contrary (although implicitly , see article 53 to the statute )


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