Preliminary Examinations at the ICC: An Analysis of Prosecutor Bensouda’s legacy

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(Paris - The Hague) Today, FIDH has published a paper analysing the work conducted by the Office of the Prosecutor of the International Criminal Court (ICC) at the preliminary examination phase. The paper is part of a broader FIDH review of Prosecutor Bensouda’s term (2012 - 2021), and puts forward recommendations for Prosecutor Khan.

FIDH carried out consultations in June and July 2021 to help identify the key achievements of Prosecutor Bensouda’s tenure and the enduring challenges the Prosecution faces with respect to preliminary examinations. The consultations involved organisations from 13 countries where the Prosecution has been carrying out preliminary examination activities, or that are closely connected to the preliminary examination for jurisdictional reasons (Afghanistan, Bangladesh, Burundi, Colombia, Georgia, Guinea, Israel, Mali, Mexico, Myanmar, Palestine, Ukraine and Venezuela).

“We consulted with over 30 organisations that had been directly involved in preliminary examination activities. The views of these organisations matter because they represent the perspective of the communities affected by the very crimes the ICC is mandated to investigate.”

Raquel Vazquez Llorente, FIDH Permanent Representative to the ICC

DOWNLOAD THE FULL PAPER HERE

Additionally, FIDH consulted other legal professionals who either have submitted information to the Court under Article 15 of the Statute, or are former staff members of the Office of the Prosecutor (OTP). The research also builds upon FIDH’s first-hand experience conducting documentation, outreach, and legal analysis at the preliminary examination stage, as well as FIDH’s monitoring activities of the OTP’s work over the past nine years.

The paper identifies the OTP’s practices, as well as achievements and opportunities for the Office to improve its working methods, transparency, and communication with civil society at the preliminary examination stage. 

In the period between 2012 - 2021, the OTP has publicly announced 20 preliminary examinations, seven of which were inherited from Bensouda’s predecessor Moreno Ocampo. In addition to these preliminary examinations, since mid-2012 the OTP has evaluated at least 50 situations that warranted further analysis but did not ultimately make it past the initial assessment.

Of the 20 preliminary examinations, Bensouda’s office opened eight investigations (Afghanistan, Bangladesh/Myanmar, Burundi, Central African Republic, Georgia, Mali, Palestine and Philippines), and recommended the opening of two investigations (Nigeria, and Ukraine). At the time of publication, there are five preliminary examinations underway, of which two were inherited from Moreno Ocampo (Colombia and Guinea), another two are state referrals (Bolivia and Venezuela II), and one was initiated proprio motu (Venezuela I). Five preliminary examinations were concluded with the decision not to investigate (Gabonese Republic, Honduras, Republic of Korea, Comoros, and UK/Iraq).

Although Prosecutor Bensouda has made considerable progress in completing several protracted preliminary examinations, the two longest examinations, spanning 17 years (Colombia) and almost 12 years (Guinea), are still ongoing.

Bensouda’s transition into the role of Prosecutor ushered in a new age at the OTP, marked by greater standardisation, transparency, and openness with civil society groups. Despite the Prosecution’s great strides in specific areas, such as the investigation of sexual and gender-based crimes – which are explored in depth in the first paper of this series – there continue to be ongoing challenges with respect to preliminary examinations. The paper unpacks the most pressing concerns of civil society, and puts forward recommendations for Prosecutor Khan.

This initiative is part of a broader FIDH review of the Prosecution’s work from 2012 to early 2021. The full stocktaking report will cover three priority areas—preliminary examinations, outreach to victims and affected communities, and sexual and gender-based crimes—and will be launched at the 20th Assembly of States Parties in December 2021.

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