Jurisdiction

In determining whether or not there is a reasonable basis to believe that crimes within the ICC’s jurisdiction have been committed, the OTP must first consider whether certain preconditions to jurisdiction are satisfied. Specifically, with the exception of UNSC referrals, the alleged crimes must have been committed on the territory of a state that has accepted the ICC’s jurisdiction (either by ratifying the Rome Statute or by making a declaration under Article 12(3)) or by a national of such a state.

This issue proved contentious in the Palestine I preliminary examination, which was triggered in 2009 when the Palestinian National Authority (PNA) attempted to submit an Article 12(3) declaration accepting the jurisdiction of the ICC.^{Footnote 93} The OTP also received 400 Article 15 communications relating to Palestine.^{Footnote 94} However, without the consent of a relevant state or a UNSC referral, the prosecutor had no legal basis to proceed on these communications. Thus, the ability of the prosecutor to act in this situation depended on the validity of the Article 12(3) declaration. Ultimately, the prosecutor closed this preliminary examination on 3 April 2012 based on its conclusion that the court lacked jurisdiction because the statehood of Palestine was not at that time confirmed by the UNGA and, thus, the PNA did not have the capacity to lodge an Article 12(3) declaration.^{Footnote 95} This situation is noteworthy because on other occasions, including an attempted Article 12(3) declaration by the Freedom and Justice Party in Egypt and proceedings relating to Myanmar and Bangladesh, the OTP has made its conclusion on whether the preconditions to jurisdiction are satisfied before a preliminary examination has formally begun.^{Footnote 96}

If satisfied that the preconditions to jurisdiction are fulfilled, the OTP must next consider whether the alleged crimes fall within its temporal and subject-matter jurisdiction. The prosecutor has closed four preliminary examinations on this basis. The first occasion was in 2006 when the (then) prosecutor closed the Venezuela I preliminary examination. The OTP stated that it had received twelve communications relating to this situation but that some communications were related to crimes committed in the context of a failed coup in April 2002 and, thus, predated the temporal jurisdiction of the court.^{Footnote 97} The other communications related to allegations of crimes committed by the government of Venezuela against its political opponents but were criticized as being “very generalized,” “not … substantiated by analysis of open source information,” and rife with inconsistencies.^{Footnote 98} Thus, the prosecutor concluded that there was no reasonable basis to believe that crimes against humanity were committed.^{Footnote 99}

The next occasion was in June 2014 when Prosecutor Fatou Bensouda closed the South Korea preliminary examination that began in 2010, which concerned war crimes allegedly committed during the sinking of the South Korean warship Cheonan in the Yellow Sea and the shelling of South Korea’s Yeongpyeong Island by North Korea.^{Footnote 100} While the OTP concluded that the chapeau requirement of an international armed conflict was established and that the court could exercise jurisdiction on the basis of objective territoriality, it concluded that the specific elements of relevant war crimes were not made out.^{Footnote 101}

The third example was in 2015 when the OTP closed the preliminary examination that it had been conducting in the situation in Honduras.^{Footnote 102} This preliminary examination initially focused on alleged crimes against humanity in the aftermath of the June 2009 coup d’état. In November 2013, the prosecutor reached an initial conclusion that there was no reasonable basis to believe that there was a widespread or systematic attack in the aftermath of the coup, and, thus, the acts in question did not amount to crimes against humanity.^{Footnote 103} Despite this, the OTP continued its preliminary examination in light of further allegations of crimes committed in the Bajo Aguán region of the country. Ultimately, in 2015, the OTP concluded that these alleged crimes may have been linked to the rise of drug trafficking in the country but, again, did not amount to crimes against humanity.^{Footnote 104}

Most recently, the OTP closed its preliminary examination into the situation in Gabon on 21 September 2018.^{Footnote 105} Following the submission of a state referral by the government of Gabon on 21 September 2016, the OTP opened a preliminary examination in relation to post-election violence in the country eight days later (the OTP also reported having received eighteen Article 15 communications in relation to this situation).^{Footnote 106} However, the prosecutor ultimately concluded that the available information did not provide a reasonable basis to believe that allegations against both state security forces and opposition forces amounted to crimes against humanity nor did allegations against the opposition leader amount to incitement to commit genocide.^{Footnote 107} Accordingly, the prosecutor closed the preliminary examination on the basis of a lack of subject-matter jurisdiction.

With respect to ongoing assessments, the OTP is currently analyzing jurisdiction in the preliminary examinations in Ukraine, the Philippines, Venezuela II, and Bangladesh/Myanmar. The preliminary examination in Ukraine was opened on 25 April 2014 following the submission of an Article 12(3) declaration by the government of Ukraine.^{Footnote 108} That government then lodged a second Article 12(3) declaration on 8 September 2015, extending the time frame of the acceptance of jurisdiction.^{Footnote 109} In addition, the OTP has received eighty-six Article 15 communications in relation to this situation.^{Footnote 110} This preliminary examination focuses on allegations in three related contexts: the protests that erupted in Kiev’s Maidan square in 2013; in Crimea; and in Eastern Ukraine.^{Footnote 111} In 2015, the OTP concluded that there was a reasonable basis to believe that the suppression of the “Maidan protests” was an attack against a civilian population pursuant to a state policy but that the attack was neither widespread nor systematic, and, thus, no crimes against humanity were committed.^{Footnote 112} The OTP has continued its assessment of subject-matter jurisdiction in the other contexts, including the Russian seizure and annexation of Crimea and in relation to fighting between the Ukrainian government and anti-government forces in the Donbas region of Eastern Ukraine, including the shooting down of Malaysian Airlines Flight MH17.^{Footnote 113}

On 8 February 2018, Prosecutor Bensouda opened two new preliminary examinations proprio motu in the situations in the Philippines and Venezuela II.^{Footnote 114} The Philippines preliminary examination focuses on alleged crimes perpetrated in the context of “the so-called ‘war on drugs’,” including those “promoted and encouraged” by Philippine President Rodrigo Duterte and other senior government officials.^{Footnote 115} The Venezuela II preliminary examination relates to allegations of crimes against humanity perpetrated “in the context of demonstrations and related political unrest” in the country since early 2017.^{Footnote 116} Interestingly, the Venezuela II situation is the first for which a state referral has been made (post hoc)^{Footnote 117} from states other than the territorial state (that is, the first non-self-referral). This referral was made jointly by six states from the Americas — namely, Argentina, Canada, Colombia, Chile, Paraguay, and Peru — on 26 September 2018.^{Footnote 118}

Finally, on 18 September 2018, Prosecutor Bensouda announced that she was opening a preliminary examination proprio motu in relation to the alleged deportation of the Rohingya people from Myanmar to Bangladesh, and possible other crimes, after receiving thirty-four Article 15 communications relating to this situation.^{Footnote 119} This announcement followed a decision issued by Pre-Trial Chamber I, upon application from the OTP, which concluded that the court could exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar into Bangladesh and possibly other crimes against humanity as well.^{Footnote 120} The Pre-Trial Chamber reasoned that, although Myanmar is not a state party to the Rome Statute, the court had jurisdiction because the alleged deportation occurred in part in Bangladesh, which is a state party.^{Footnote 121}

Admissibility

After considering jurisdiction, the OTP must determine whether or not potential future cases would be admissible to the ICC in accordance with Article 17 of the Rome Statute. The first consideration here is the principle of “complementarity,” which limits admissible cases to those not investigated or prosecuted genuinely by the relevant domestic courts.^{Footnote 122} While there are no actual “cases” at the preliminary examination phase, the prosecutor must assess whether any potential cases would be admissible. To date, no preliminary examinations have been closed on the basis of inadmissibility due to complementarity. This is likely, at least in part, to be a result of the OTP’s commitment to “positive complementarity” — that is, its commitment to encouraging genuine national prosecutions of the alleged crimes.

Additionally, a case is inadmissible before the ICC if it “is not of sufficient gravity to justify further action by the Court.”^{Footnote 123} On 9 February 2006, the OTP announced that it was closing a preliminary examination into the Iraq/UK situation on this basis.^{Footnote 124} While Iraq is not a state party to the Rome Statute, the allegations relate to crimes allegedly committed by nationals of the UK, which is a state party, giving the ICC jurisdiction under Article 12(2)(b). The preliminary examination was opened on the basis of “over 240” Article 15 communications.^{Footnote 125} The OTP concluded that, within its limited jurisdiction over what allegedly happened in Iraq, there was a reasonable basis to believe that the war crimes of wilful killing of approximately four-to-twelve victims and inhumane treatment of less than twenty victims had been perpetrated.^{Footnote 126} Nonetheless, it ultimately concluded that this did not meet the required gravity threshold and, thus, was not admissible.^{Footnote 127} Accordingly, the OTP closed the preliminary examination with a decision not to proceed to an investigation. However, on 13 May 2014, Prosecutor Bensouda “reopened” this preliminary examination on the basis of new information relating to the allegations.^{Footnote 128}

The Comoros preliminary examination was the second to be closed due to a conclusion of insufficient gravity, and the only preliminary examination to remain closed on that basis. The preliminary examination was initiated as a result of a state party referral by Comoros concerning the 2010 interception by the Israeli Defence Forces of a humanitarian aid flotilla destined for Gaza of ships registered to Comoros, Greece, and Cambodia, which resulted in the death of ten people on the vessel registered to Comoros (the Mavi Marmara) and the mistreatment of other passengers.^{Footnote 129} The OTP concluded that there was a reasonable basis to believe that war crimes were committed on the Mavi Marmara; however, “the total number of victims of the flotilla incident reached relatively limited proportions as compared, generally, to other cases involved by the Office.”^{Footnote 130} Accordingly, the preliminary examination was closed due to insufficient gravity. Comoros asked the Pre-Trial Chamber to review the prosecutor’s decision and to request that she reconsider.^{Footnote 131} The Pre-Trial Chamber granted that request.^{Footnote 132} This was the first and, thus far, the only time that such a request to the prosecutor has been made. On 29 November 2017, the prosecutor released a “final decision” affirming her prior conclusion on the gravity threshold.^{Footnote 133} A year later, a differently constituted Pre-Trial Chamber released yet another decision reiterating the request to the prosecutor to reconsider her decision (the majority concluding that the prosecutor did not adequately comply with the earlier pre-trial decision in her purported “final decision”).^{Footnote 134} The prosecutor has sought leave to appeal that decision.^{Footnote 135} Thus, proceedings in relation to the Comoros situation linger on, more than four years after the prosecutor’s initial decision to close the preliminary examination.

With respect to other ongoing preliminary examinations, the OTP is still assessing admissibility in five situations: Colombia, Guinea, Nigeria, the reopened Iraq/UK preliminary examination, and Palestine II. The preliminary examination in Colombia was opened in June 2004 (although it was not made public until later).^{Footnote 136} It focuses on crimes against humanity and war crimes allegedly committed by government forces as well as members of non-state armed groups including the Fuerzas Armadas Revolucionarias de Colombia — Ejército del Pueblo, the Ejército de Liberación Nacional, and other paramilitaries.^{Footnote 137} While the OTP has not clarified precisely when it concluded that there was a reasonable basis to believe that crimes within the jurisdiction of the court had been committed in this situation, its reports show that this decision was made no later than 2010, at which point the OTP was already focused on admissibility.^{Footnote 138} Over the past few years, Colombia has sent the OTP hundreds of judgments that may relate to crimes within the court’s jurisdiction.^{Footnote 139} Nonetheless, the OTP has kept open the preliminary examination, with no final decision on whether the potential ICC cases are already the subject of genuine national proceedings.^{Footnote 140}

On 14 October 2009, the OTP opened a preliminary examination in the situation in Guinea, focusing on the violent suppression of pro-democracy/anti-government protests by security forces in Conakry stadium on 28 September 2009.^{Footnote 141} By 13 December 2011, the OTP had concluded that there was a reasonable basis to conclude that crimes against humanity had been committed in this situation.^{Footnote 142} Since then, the OTP has been focused on its admissibility assessment. Despite the fact that Guinean authorities have expressed a commitment to investigating and prosecuting these crimes for years and have taken significant investigatory steps towards such prosecutions,^{Footnote 143} the OTP has kept its preliminary examination ongoing, noting in its 2018 report that the national investigation in Guinea has been completed and that proceedings into the relevant case are underway. Therefore, the OTP’s admissibility assessment has focused on whether the national authorities are willing and able to conduct those proceedings genuinely, “in particular whether proceedings are conducted with the intent to bring to justice the alleged perpetrators within a reasonable time frame.”^{Footnote 144}

The preliminary examination in Nigeria was opened proprio motu by Prosecutor Luis Moreno-Ocampo. It was made public on 18 November 2010,^{Footnote 145} but the OTP had been receiving Article 15 communications over the preceding five years.^{Footnote 146} This preliminary examination has considered numerous allegations in relation to three different regions and contexts within the country, including “inter-communal, political and sectarian violence” in the Middle Belt states; allegations of violence in the Niger Delta region; and alleged crimes committed by Boko Haram in the country’s northeast.^{Footnote 147} In its report of 5 August 2013, the OTP concluded that there was no reasonable basis to believe that the alleged crimes committed in the “inter-communal violence” and in the Niger Delta qualified as crimes within the jurisdiction of the ICC but that there was a reasonable basis to conclude that crimes against humanity were committed by Boko Haram.^{Footnote 148} While the OTP continues to look into reports of new crimes in Nigeria,^{Footnote 149} for the past five years it has focused primarily on the issue of admissibility, noting that although “there seems to be a tangible prospect of further proceedings against members of Boko Haram, including high-level commanders, at this stage the same cannot be said of the [National Security Forces].”^{Footnote 150}

In relation to the Iraq/UK preliminary examination, Prosecutor Bensouda “reopened” this preliminary examination on 13 May 2014 on the basis of new Article 15 communications.^{Footnote 151} The OTP has since concluded that there was a reasonable basis to believe that members of the UK forces committed war crimes within the jurisdiction of the court against at least sixty-one victims^{Footnote 152} and is now focusing on the issue of admissibility.^{Footnote 153} Subsequent to the failed attempt by Palestine to submit an Article 12(3) declaration in 2009, the UNGA granted Palestine “non-member observer state” status in late 2012.^{Footnote 154} This allowed Palestine to submit a valid Article 12(3) declaration on 1 January 2015, prompting the OTP to open a preliminary examination on 16 January of that year. The day after the deposit of its Article 12(3) declaration, Palestine deposited its instrument of accession to the Rome Statute, making it a state party. In addition to Palestine’s declaration, the OTP has received 125 communications in relation to alleged crimes committed in this context.^{Footnote 155} As part of this preliminary examination, the OTP has stated that it is looking into crimes allegedly committed in relation to settlement activities in the West Bank and East Jerusalem and by both Palestinian armed groups as well as Israeli Defence Forces (IDF) during the conflict in Gaza in July and August 2014 and more recent violence along the Israel–Gaza border.^{Footnote 156} The OTP has noted challenges that have arisen in the context of this preliminary examination, including certain (unspecified) “novel and/or complex legal issues” involved.^{Footnote 157} In May 2018, Palestine submitted a post hoc state self-referral of the situation to the ICC, thereby enabling the prosecutor to open an investigation without judicial authorization should she be satisfied that the statutory criteria are satisfied.^{Footnote 158} The OTP’s 2018 report on preliminary examination activities indicates that it is continuing to assess subject-matter jurisdiction in this situation and is also considering the admissibility of potential cases in line with a “holistic” (as opposed to sequenced) assessment of the Article 53(1) criteria.^{Footnote 159} The report states that the OTP has reached an “advanced stage” of its assessment of those criteria in relation to Palestine^{Footnote 160} and “intends to complete the preliminary examination as early as possible.”^{Footnote 161} However, it is silent as to whether the prosecutor has determined that there is, or is not, a reasonable basis to believe that any crimes were committed, which is different from the other ongoing preliminary examinations where the OTP has proceeded to consider issues of admissibility.

On the issue of complementarity, the OTP noted that there is no evidence of national investigations or prosecutions in relation to settlement activity or other crimes in the West Bank and East Jerusalem but that there have been investigative activities in relation to alleged crimes perpetrated by the IDF in relation to the 2014 Gaza conflict. By contrast, it suggests that there are no ongoing national proceedings, in either Palestine or Israel, in relation to crimes allegedly committed by Palestinian armed groups.^{Footnote 162}

Interests of Justice

The final requirement of Article 53(1) states that the prosecutor should proceed to an investigation unless, “[t]aking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.” To date, the prosecutor has never closed a preliminary examination on the basis of this “interests-of-justice” criterion. Furthermore, the OTP’s analyses of this criterion tend to be very brief because Article 53(1)(c) is framed in the negative rather than as something that the prosecutor must establish. In September 2007, the OTP issued a Policy Paper on the Interests of Justice, which emphasizes the exceptional nature of a decision by the prosecutor not to proceed on this basis and that “there is a presumption in favour of investigation” when the criteria of jurisdiction and admissibility are satisfied.^{Footnote 163} While the policy paper provides little guidance on what would satisfy this test, it distinguishes between the “interests of justice” and the “interests of peace,” stating that the latter falls outside the purview of the OTP.^{Footnote 164} In the intervening eleven years, the OTP has not reviewed this policy.

In most situations in which the OTP has concluded a preliminary examination with a decision to proceed to an investigation, very little is said about this criterion short of a brief sentence or two stating that there are “no reasons to believe that the opening of an investigation into the situation would not be in the interests of justice.”^{Footnote 165} On some occasions, the OTP has pointed to support from victims and victim organizations for prosecutions to substantiate its conclusion to proceed.^{Footnote 166} For example, in its preliminary examination in the situation in CAR I, the OTP noted, in particular, a recent mission to Bangui “where the OTP received clear confirmation that many of the victims in the Central African Republic were awaiting the involvement of the ICC in order to see justice done and to recover their dignity.”^{Footnote 167} In its request for authorization of an investigation in the situation in Afghanistan, the OTP pointed to a nationwide consultation conducted by Afghanistan’s Independent Human Rights Commission that “found that the desire for criminal justice was strong” as well as to a joint letter to the prosecutor submitted by fifteen civil society organizations and an open letter published by twenty-eight Afghan NGOs, both of which called on the ICC for action.^{Footnote 168} Similarly, in concluding its preliminary examination in Georgia, the OTP pointed to submissions made by victims and human rights organizations indicating the victims’ desire to see justice done as well as to the calls for an ICC investigation by the Office of the Public Defender/Ombudsman of Georgia.^{Footnote 169} The OTP also noted that it considered “views expressed by the Parliamentary Assembly of the Council of Europe, which has recurrently called for independent investigations.”^{Footnote 170}

Preliminary Examinations Leading to an Investigation

The most common outcome for preliminary examinations has been to progress to an investigation. The first example was in June 2004, when Prosecutor Moreno-Ocampo opened an investigation in the DRC after receiving a “self-referral” from that state in April 2004.^{Footnote 176} Interestingly, although that investigation was triggered by a referral, the preliminary examination was opened by the prosecutor on his own motion (in September 2003, the prosecutor announced that he was ready to request authorization to open an investigation in the DRC, indicating that he had already conducted a preliminary examination proprio motu and determined that there was a reasonable basis to proceed).^{Footnote 177} One month later, the prosecutor opened a second investigation in the situation in Uganda.^{Footnote 178} This development followed the decision by Ugandan president Yoweri Museveni to refer “the situation concerning the Lord’s Resistance Army” — a rebel group that had been working to overthrow his government since the 1990s — to the ICC prosecutor in December 2003.^{Footnote 179} Since the OTP did not announce the opening of preliminary examinations at this early stage in its practice, there is some uncertainty as to whether or not the prosecutor was already conducting a preliminary examination into the Ugandan situation prior to Museveni’s referral.^{Footnote 180}

For both the DRC and Uganda situation, there is limited information about the steps taken by the OTP during these early preliminary examinations. However, as time went on, the OTP’s practice of opening preliminary examinations and investigations became increasingly transparent. On 22 May 2007, the OTP announced the start of a third investigation, this time into crimes allegedly committed in CAR.^{Footnote 181} This investigation followed a preliminary examination that began when the OTP received a self-referral from that state in December 2004^{Footnote 182} and that took into account several communications from NGOs and international organizations,^{Footnote 183} some of which were submitted before the referral was received.^{Footnote 184}

The next major development was in March 2005 when the UNSC referred the situation in Darfur, Sudan, to the ICC.^{Footnote 185} Two months later,^{Footnote 186} Prosecutor Moreno-Ocampo announced his decision to open an investigation into that situation. The court’s second UNSC referral came on 26 February 2011, in relation to the situation in Libya. Prosecutor Moreno-Ocampo announced the opening of the OTP’s investigation into the situation a mere five days later, making this the shortest preliminary examination to date.^{Footnote 187} After that flurry of referrals, the prosecutor began to open investigations proprio motu. The first example concerned Kenya’s 2007–08 post-election violence. In line with the former prosecutor’s practice of seeking referrals from states, the OTP held several discussions with Kenyan authorities about a possible state referral after beginning a preliminary examination in December 2007.^{Footnote 188} However, no such referral eventuated, and, in November 2009, the prosecutor requested judicial authorization to open an investigation and received that authorization in March 2010.^{Footnote 189} In June 2011, the prosecutor requested authorization to open another investigation proprio motu, this time in relation to the 2010–11 post-election violence in Côte d’Ivoire. Côte d’Ivoire was at that time not a state party to the Rome Statute. However, it had accepted the jurisdiction of the ICC through an Article 12(3) declaration in 2003^{Footnote 190} and later confirmed acceptance of the court’s jurisdiction on two further occasions.^{Footnote 191} The pre-trial judges authorized the investigation on October 2011,^{Footnote 192} and, in February 2013, Côte d’Ivoire ratified the Rome Statute.

The ICC’s next investigation, and the first opened by Prosecutor Bensouda, related to crimes allegedly committed in Mali. That investigation was opened in January 2013, after Prosecutor Bensouda received Mali’s “self-referral” in July 2012, which triggered the preliminary examination.^{Footnote 193} By November 2012, the OTP had already determined that there was a reasonable basis to believe that crimes within the jurisdiction of the court had been committed, and the investigation was opened shortly thereafter.^{Footnote 194} An earlier situation in CAR had already been the subject of an investigation by the OTP when Prosecutor Bensouda opened an investigation in relation to a subsequent conflict in that state in September 2014 (CAR II).^{Footnote 195} While the prosecutor opened the CAR II preliminary examination proprio motu in February 2014,^{Footnote 196} CAR subsequently referred the situation to the court in May 2014, removing the need to seek judicial authorization before the investigation could proceed.^{Footnote 197}

The investigation into the situation in Georgia, concerning the armed conflict in and around South Ossetia in 2008, was the next to be opened. This investigation was the first investigation opened in relation to a country outside of Africa, and the first investigation opened by Prosecutor Bensouda proprio motu. The preliminary examination was also notable because, unlike prior examples, it was initiated with the support of a major non-state party, Russia. In fact, the vast majority of Article 15 communications that triggered the preliminary examination (a total of 3,817) were sent by the prosecutor general of Moscow.^{Footnote 198} The OTP commenced the preliminary examination on 14 August 2008 and, by 2011, concluded that there was a reasonable basis to believe that crimes within the jurisdiction of the court were committed.^{Footnote 199} On 17 March 2015, the government of Georgia informed the OTP that national proceedings had been indefinitely suspended, which prompted the OTP to conclude that “the potential cases identified in the Request would be admissible, due to State inaction.”^{Footnote 200} The OTP requested authorization to open an investigation into the situation in Georgia on 13 October 2015, which was granted by Pre-Trial Chamber I on 27 January 2016.^{Footnote 201}

The commencement of the next investigation, in relation to the situation in Burundi, occurred in tense circumstances. On 25 April 2016, Prosecutor Bensouda announced that the OTP was opening a preliminary examination into crimes that had been reportedly committed in Burundi since April 2015.^{Footnote 202} In response to that announcement, Burundi submitted notification of its intent to withdraw from the Rome Statute to the UN secretary-general.^{Footnote 203} Pursuant to Article 127 of the Rome Statute, Burundi’s withdrawal became effective one year later, making it the first state to officially withdraw from the ICC. In the context of that impending deadline, the preliminary examination proceeded more quickly than most. Despite not having reached a conclusion with respect to either questions of jurisdiction or admissibility as of its 2016 preliminary examination report,^{Footnote 204} the Prosecutor had concluded her preliminary examination by 17 August 2017 and notified the ICC president of her intent to submit a request for authorization, which was submitted on 6 September 2017.^{Footnote 205} The Pre-Trial Chamber also moved quickly, granting authorization to open an investigation on 25 October 2017.^{Footnote 206} The prosecutor opened her investigation that same day, a mere two days before Burundi’s withdrawal came into effect.

The most recent preliminary examination to conclude with a request for authorization to open an investigation is in the situation in Afghanistan. The OTP has stated that it has received Article 15 communications in relation to Afghanistan since 1 June 2006.^{Footnote 207} The Afghanistan preliminary examination, which relates to the conflict in, and associated with, that country following the 9/11 attacks,^{Footnote 208} is one of the longest known preliminary examinations to date, second only to Colombia (see Figure 5).^{Footnote 209} By 2013, the OTP had concluded that there was a reasonable basis to believe that crimes within the jurisdiction of the court had been committed.^{Footnote 210} However, it was not until 30 October 2017 that the prosecutor notified the ICC president of her intent to submit a request for authorization of an investigation, which was submitted on 20 November 2017.^{Footnote 211} In addition to numerous allegations against Taliban forces and “affiliated armed groups,” as well as against Afghan National Security Forces, the OTP concluded that there was a reasonable basis to believe that members of the US armed forces and the Central Intelligence Agency (CIA) had perpetrated crimes,^{Footnote 212} making the situation in Afghanistan politically challenging given the United States’s current posture towards the ICC.

Preliminary Examinations Closed without an Investigation

As of 30 November 2018, seven preliminary examinations were closed with a decision not to proceed to an investigation. The reasons for this outcome vary. As detailed above, one was closed because the OTP concluded that the preconditions to jurisdiction were not satisfied (Palestine I); four were closed because the OTP concluded that there were not reasonable grounds to believe that crimes within the ICC’s jurisdiction had been committed (Venezuela I, South Korea, Honduras, and Gabon); and two were closed because the OTP concluded that the potential cases would be inadmissible due to insufficient gravity (Iraq/UK and Comoros).

In 2014, Prosecutor Bensouda “reopened” the Iraq/UK preliminary examination, which the previous prosecutor had closed for lack of gravity, on the basis of new information.^{Footnote 213} Additionally, in relation to Comoros, Pre-Trial Chamber I requested the prosecutor for the first time ever to “reconsider” her conclusion that the alleged crimes did not meet the gravity threshold for the ICC.^{Footnote 214} While the prosecutor affirmed her initial conclusion, judicial proceedings in relation to this situation remain ongoing.^{Footnote 215} These two events suggest that conclusions based on gravity may be more susceptible to challenge, critique, or reconsideration given that the gravity threshold is highly discretionary and that there is still a fair amount of debate about how it should be applied.

To date, no preliminary examinations have been closed due to the existence of genuine national proceedings (complementarity). However, when the OTP initially closed the Iraq/UK preliminary examination in 2006 on the basis of insufficient gravity, it also stated that “the Office also collected information on national proceedings … and … national proceedings have been initiated with respect to each of the relevant incidents.”^{Footnote 216} Recently, the OTP has reiterated that “the UK has initiated a number of criminal proceedings in relation to the conduct of UK troops in Iraq.”^{Footnote 217} Additionally, the OTP has been conducting some lengthy complementarity assessments, most notably in the situation in Colombia, as well as the Guinea and Nigeria preliminary examinations. Thus, one of these situations may become the first preliminary examination closed by reason of inadmissibility based on complementarity. Finally, the OTP has never concluded that it is not in the interests of justice to proceed to an investigation (see Figure 3).

Figure 3. Reasons not to proceed past a preliminary examination (as at 30 November 2018)

Triggers and Outcomes

For example, by considering the trigger and outcomes together, we can better assess the role that states, the UNSC, and other actors play in triggering the actions of the ICC (see Figure 8).^{Footnote 248}

Figure 8. Triggers and outcomes for ICC preliminary examinations (as at 30 November 2018)

Both preliminary examinations triggered by UNSC resolutions resulted in the opening of investigations and, ultimately, the issuance of arrest warrants. Three of the five preliminary examinations triggered by state referrals also resulted in investigations being opened and arrest warrants being issued, the exceptions being the situations in Comoros and Gabon. The outcomes of the preliminary examinations opened proprio motu have been far more varied. Of the four preliminary examinations initiated by the prosecutor proprio motu upon receipt of an Article 12(3) declaration, one proceeded to investigation (Côte d’Ivoire), one was closed without an investigation (Palestine I), and two are ongoing (Ukraine and Palestine II). Outcomes also vary significantly among preliminary examinations opened proprio motu without an Article 12(3) declaration. Three of these preliminary examinations were closed due to lack of subject-matter jurisdiction (Venezuela I, Honduras, and South Korea), a fourth was closed due to insufficient gravity but subsequently reopened (Iraq/United Kingdom), six remain continuously ongoing (Bangladesh/Myanmar, Colombia, Guinea, Nigeria, the Philippines, and Venezuela II), and six have led to an investigation or a request to authorize an investigation (Afghanistan, Burundi, CAR II, DRC, Georgia, and Kenya).

With respect to the preliminary examinations that concluded (whether with an investigation or with a decision not to proceed), a pattern in outcome has begun to emerge based on whether or not the trigger involved explicit consent of one or more states.^{Footnote 249} To explain, both preliminary examinations triggered by the UNSC resulted in the opening of an investigation. Additionally, of the eight other situations in which the state in some way invited the prosecutor to act (either by a state self-referral, an Article 12(3) declaration, or a post hoc self-referral that indicates state consent after a preliminary examination was opened, even if it was not present initially), six (75 percent) resulted in a decision to proceed to an investigation.^{Footnote 250} By contrast, of the concluded preliminary examinations that were triggered by the prosecutor without explicit state consent, four have concluded with a decision to proceed to an investigation^{Footnote 251} and three were closed due to lack of subject-matter jurisdiction.^{Footnote 252} Thus, of the seven concluded preliminary examinations in this category, 57 percent resulted in a decision to proceed to an investigation. This discrepancy suggests that explicit state consent tends to somewhat increase the likelihood that the prosecutor will seek authorization to proceed to an investigation.

Triggers and Frequency

As there have only been two UNSC referrals, not much can be said about their frequency. However, it is noteworthy that, despite the fact that neither referral has resulted in a case that has proceeded smoothly to trial,^{Footnote 253} attempts have still been made to have further UNSC referrals (for example, in relation to Syria^{Footnote 254} and Myanmar^{Footnote 255}). With respect to state referrals, there were a couple of referrals early on in the ICC’s practice, followed by a lull in the receipt of state party referrals for a number of years between 2004 and 2012. This is even more apparent if one combines both the triggering state party referrals and the four post hoc referrals that occurred in 2004 and 2014 and the two in 2018.^{Footnote 256} This gap may represent some hesitancy on the part of states after the initial burst of referrals to see how the court’s work progressed as it actually began its first prosecutions, although there is no way to know for sure. It may also simply reflect the fact that the prosecutor stopped being so active in seeking referrals. It is interesting, however, that the frequency of state party referrals has picked up again in recent years. This suggests that, despite the many criticisms levied at the court, states are still willing to turn to the ICC. It is particularly noteworthy that of the six referrals submitted since 2012 (including post hoc referrals), four have come from African countries,^{Footnote 257} despite the general African Union position of antipathy towards the court, including threats of mass withdrawals.^{Footnote 258} A somewhat similar pattern is apparent with Article 12(3) declarations, with somewhat of a gap appearing after the court’s initial years but with continuing use of this mechanism more recently as exhibited by the declarations submitted by Ukraine in 2014 and Palestine in 2015 (see Figure 9).

Figure 9. Frequency and trigger for preliminary examinations (as at 30 November 2018)

Notes: * Iraq/United Kingdom and Venezuela I preliminary examinations closed in February 2006, but the starting year is unknown.

** Nigeria and Honduras preliminary examinations made public in 2010, but the actual starting dates are unknown.

*** Excludes Iraq/United Kingdom, which was ‘reopened’ in May 2014.

With respect to preliminary examinations opened by the prosecutor without Article 12(3) declarations, the frequency pattern is different. After fairly consistent frequency of new preliminary examinations proprio motu in the ICC’s early years and a spike in 2010, the frequency of such preliminary examinations tapered off for a number of years. This is not a reflection of a change in the submission of Article 15 communications, which have remained relatively consistent and have continued to come in high volumes each year.^{Footnote 259} More likely, it is a question of resourcing; given that the OTP must work within a budget and cannot control when the next referral will come, there is a practical incentive for the prosecutor to take a conservative approach to opening preliminary examinations proprio motu. Having said that, the instigation of three new preliminary examinations on this basis in 2018 indicates that the OTP remains responsive to reported crimes, even in the face of resource constraints.

Triggers and Geography

Considering the trigger when compared to the geography of different preliminary examinations is revealing and helps nuance some of the critiques of the court such as the alleged African bias. It is well known that the two UNSC referrals involve African states and that such referrals have been unsuccessful in relation to non-African countries. However, it is also noteworthy that all five preliminary examinations triggered by state party self-referrals concern crimes allegedly perpetrated in African states or on an African-flagged vessel,^{Footnote 260} as did one of the preliminary examinations initiated in response to an Article 12(3) declaration (Côte d’Ivoire) and two preliminary examinations in which the states concerned made post hoc referrals (the DRC and CAR II). Thus, when one looks at the triggers for preliminary examinations and investigations together, it is clear that many African states have “invited in” ICC activity, so to speak (although sometimes, in the early days, at the prompting of the prosecutor).^{Footnote 261} This state-led activity, together with the approach of the UNSC, has contributed to the ICC’s initial focus on the African continent.

The OTP has played an important part in expanding the ICC’s reach beyond Africa. Of the preliminary examinations triggered proprio motu without an Article 12(3) declaration, six concern crimes allegedly committed in African states,^{Footnote 262} four concern crimes committed in Latin America,^{Footnote 263} two concern crimes committed in Eastern Europe,^{Footnote 264} and five concern crimes committed in Asia-Pacific.^{Footnote 265} Additionally, two of these preliminary examinations involve allegations against nationals from two WEOG states, namely the United States and the United Kingdom.^{Footnote 266}

Geography and Duration

We also looked at the geography of preliminary examinations in relation to their duration. As noted above, the two UNSC referrals were the two shortest preliminary examinations, and both relate solely to African countries. This trend is repeated when looking at the four other preliminary examinations completed in less than a year, which, again, include only African countries (DRC, Uganda, Mali, and CAR II). The Burundi, Kenya, Gabon, and CAR I preliminary examinations were also relatively short, all concluding in less than two-and-a-half years. The only other preliminary examination completed in less than two years was the situation in Comoros, involving allegations against Israeli nationals, which lasted just under a year and a half (although proceedings in relation to this preliminary examination were subsequently prolonged due to the request for reconsideration). In fact, including the Comoros preliminary examination (in which crimes were alleged to have been perpetrated on the territory of an African-flagged vessel, although allegations were against non-African nationals), the eleven shortest concluded preliminary examinations all involved African countries. The six completed preliminary examinations that took longest to conclude are more geographically diverse, including Palestine I, South Korea, Honduras, Georgia, Côte d’Ivoire, and Afghanistan. While there are many reasons why the prosecutor may proceed quickly or slowly in any given preliminary examination, this paints an interesting picture in relation to critiques about the court’s willingness to act in Africa as well as concerns about the prolonged wait for justice by victims in other regions. Thus, the prosecutor would do well to explain why the OTP proceeded so quickly in some preliminary examinations and far more slowly in others.

Triggers and Duration

As has been observed elsewhere, the length of preliminary examinations varies with respect to the jurisdictional trigger.^{Footnote 267} In particular, the two preliminary examinations triggered by UNSC referral are the shortest of all preliminary examinations. State party referrals clearly represent the second shortest category. The longest preliminary examination triggered by a state party referral is the situation in CAR I, which lasted for two years and five months, and all preliminary examinations triggered by state party referrals (which are all now concluded) lasted less than the average total length of 2.85 years. Preliminary examinations triggered by Article 12(3) declarations are generally lengthier, despite the fact that they also involve states inviting ICC intervention. The Palestine I preliminary examination took over three years to conclude that the declaration was invalid, and, as mentioned above, the Côte d’Ivoire preliminary examination lasted close to eight years.

Preliminary examinations opened by the prosecutor without Article 12(3) declarations include many of the lengthiest preliminary examinations, such as those in Colombia, Afghanistan, Guinea, Georgia, Nigeria, and Honduras. Three notable exceptions to this trend include the preliminary examination in Kenya, which was concluded in less than two years, the preliminary examination in Burundi, which took just over one year and three months, and the preliminary examination in the DRC, which lasted only approximately two-and-a-half months. It is notable that all three of these involve African states. In short, the average length of preliminary examinations based on the trigger has varied greatly, with only 33.5 days for UNSC referrals, 510 days (just under a year and a half) for state party referrals, 1,762 days (almost five years) for Article 12(3) declarations, and 1,666 days (just over four-and-a-half years) for preliminary examinations opened proprio motu without an Article 12(3) declaration.^{Footnote 268}

As Anni Pues notes, this discrepancy is probably due in part to the fact that the OTP is unlikely to require a lengthy complementarity assessment in situations involving referrals.^{Footnote 269} States parties will presumably only make referrals if their own judiciary is incapable of prosecuting the relevant case(s) domestically.^{Footnote 270} For example, in Mali’s referral to the court, “the Malian authorities informed the Office that … the Malian courts are unable to prosecute crimes.”^{Footnote 271} Similarly, after referring the situation on its territory to the ICC, the Democratic Republic of the Congo confirmed that there was no national case underway against Germain Katanga in relation to the Bogoro attack because “at the time of the crimes (February 2003) … the DRC was unable genuinely to investigate the crimes” and “since then the situation has shown little improvement.”^{Footnote 272} Additionally, if the OTP receives a referral from either the UNSC or a state party (including a post hoc referral after the preliminary examination has been commenced), it does not need to prepare a submission requesting authorization of the investigation, which will shorten the preliminary examination considerably.

Preliminary examinations will also likely proceed more quickly with state cooperation, which will often (but not always) be present where the situation was referred to the ICC by a state with jurisdiction over the alleged crimes.^{Footnote 273} This raises a question as to why the preliminary examinations opened by the prosecutor upon receipt of an Article 12(3) declaration, which works like a self-referral from a state that is not (yet) a party to the Rome Statute, have all been relatively lengthy (the shortest being the Palestine I preliminary examination, which took over three years). Furthermore, in some circumstances, preliminary examinations can be completed quickly even without cooperation from the relevant state. The OTP recently demonstrated this in relation to Burundi, in which a relatively swift preliminary examination resulted in a successful authorization to investigate, despite a lack of cooperation from the state and the inability of OTP staff to even enter the territory.^{Footnote 274}

At the end of the day, prioritization is inevitable due to limited resources of the OTP. However, as commentators have rightly pointed out, the lack of transparency regarding how this prioritization is undertaken and the vastly differing time frames among the preliminary examinations inevitably creates room for critique.^{Footnote 275} As Human Rights Watch has suggested, “when resource constraints factor into decisions about situations under analysis, the OTP should openly acknowledge that fact, lending increased transparency and credibility to OTP decision-making.”^{Footnote 276}

Preliminary Examinations and Prosecutors

As of 30 November 2018, Prosecutor Bensouda had only completed approximately 6.5 years (just over 72 percent) of her nine-year term. Even so, some initial comparison of the OTP’s preliminary examinations under the leadership of its two prosecutors is possible. During his nine-year term, Prosecutor Moreno-Ocampo opened seventeen preliminary examinations, ten of which (59 percent) were concluded by the end of his term. Of these ten, seven resulted in the opening of an investigation, and three were closed with a decision not to proceed to an investigation (Venezuela I, Palestine I, and Iraq/UK).

Of the seven preliminary examinations that were opened by Prosecutor Moreno-Ocampo but not concluded as of the end of his term, three still remain ongoing. These include the preliminary examinations in Colombia, Guinea, and Nigeria, which are among the longest-running preliminary examinations to date. The Iraq/UK preliminary examination, which Prosecutor Bensouda “reopened” in 2014, also remains ongoing. Two preliminary examinations opened by Moreno-Ocampo were later closed by Bensouda — namely, Honduras and South Korea. Two other preliminary examinations opened by Moreno-Ocampo concluded with a decision by Bensouda to proceed to an investigation (Georgia and Afghanistan). It is also noteworthy that all of the preliminary examinations inherited by Bensouda from Moreno-Ocampo’s tenure were opened proprio motu on the basis of Article 15 communications, whereas Moreno-Ocampo completed all preliminary examinations opened by state party referral, UNSC referral, and Article 12(3) declaration before leaving office. In total, by the end of Moreno-Ocampo’s term, seven out of seventeen preliminary examinations resulted in a decision to proceed to an investigation,^{Footnote 277} three were closed with a decision not to proceed to an investigation (although one of these, namely Iraq/UK, was subsequently “reopened”),^{Footnote 278} and another seven remained underway.^{Footnote 279}

The ICC’s second prosecutor, Prosecutor Bensouda, took office on 15 June 2012. During her term, the OTP has opened ten new preliminary examinations,^{Footnote 280} “reopened” the Iraq/UK preliminary examination, and continued work on the seven preliminary examinations inherited from Prosecutor Moreno-Ocampo. This brings the number of preliminary examinations worked on during Bensouda’s term to date to eighteen, which has already surpassed the total number during her predecessor’s term. In relation to outcomes of preliminary examinations during Bensouda’s term, as of 30 November 2018, four have led to investigations,^{Footnote 281} a fifth (Afghanistan) will potentially proceed to investigation pending the Pre-Trial Chamber’s decision, four have been closed without an investigation,^{Footnote 282} and nine are ongoing.^{Footnote 283} That breakdown may change by the end of Bensouda’s term, which will end in June 2021.