18th SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE
Day 5 (6 December 2019)
Name of the Event: Launch of the ICC Office of the Prosecutor’s report on Preliminary Examination Activities 2019 (Side Event co-hosted by Bulgaria, Finland, Niger, Senegal, Slovenia, Tunisia, Uruguay, and the ICC Office of the Prosecutor (OTP))
Overview by: Rachel Grand, Junior Research Associate PILPG-NL
Main Highlights:
Current Preliminary Examinations – Venezuela, Colombia, Guinea, Republic of Iraq, Nigeria, Palestine, Philippines, Ukraine, and Bangladesh/Myanmar.
Prosecutor Fatou Bensouda discussed 3 key themes of the 2019 report – the OTP’s approach and phase 1 analysis, finalization and abstract timelines, and operational capacity/prioritization.
Questions – on preliminary examinations in Latin America, Palestine, Nigeria, and the investigation into the situation in Bangladesh/Myanmar.
Read the OTP’s report Preliminary Examination Activities 2019 here.
Summary of the Event:
The ICC Prosecutor, Fatou Bensouda, launched the Office of the Prosecutor's annual report on Preliminary Examinations (published a day earlier on 5 December) during this event. The Prosecutor first provided an overview of the OTP’s Preliminary Examination (PE) Activities of 2019, discussing the PE’s in Venezuela, Colombia, Guinea, Iraq/UK, Nigeria, Palestine, Republic of the Philippines, Ukraine, and Bangladesh/Myanmar.
Regarding the PE into the situation in Venezuela, she said her office would conclude the subject matter assessment in early 2020. Following that, there will be an assessment of admissibility, and her office will continue to see if crimes committed fall under the Court's jurisdiction. The Prosecutor mentioned the UN's fact-finding mission in Venezuela and noted she looks forward to cooperating with them. She continued with the PE into Colombia, in which her office is currently assessing information from national authorities. The Prosecutor could not say whether the PE will conclude in 2020 since the reality of the long-term and complex proceedings in Colombia need to be reflected. However, she expressed hope to meet specific benchmarks if the present trend will continue, and the PE will conclude. Regarding Guinea, the Prosecutor mentioned the PE stage had been painfully long due to unrest in the country, and she expressed hope there are no further delays in the proceedings. Concerning the situation in the Republic of Iraq, the OTP looks at the admissibility requirement and domestic proceedings, as well as into allegations of the blocking of the investigations. For Nigeria, the Prosecutor noted that the conduct of national proceedings has been renewed this week and she stressed the urgency of the situation. Similarly, she noted the urgency of the PE into Palestine. She noted the criticism the office has received from both sides on the delay of a decision. She affirmed that her office plans to make a decision rapidly but has many facts to consider. The Prosecutor finally discussed the PE in the Philippines and Ukraine, for which determinations should follow soon. She concluded discussing the opening of the investigation into Bangladesh/Myanmar, for which the OTP has already taken measures for the roll out of the investigation, and the appeal hearings concluding today on the potential authorization of an investigation into alleged crimes committed in Afghanistan.
Following this overview, the Prosecutor discussed three key themes present in the 2019 report, concerning the OTP’s approach and a number of considerations and challenges. First, she touched upon the OTP’s approach and phase one analysis. She described how phase one is devoted to conducting analysis specifically looking at jurisdiction. This phase serves as a filtering process in which the OTP transforms the 795 Article 15 communications they received this year into detailed reports. Since 2012, her office has produced 50 of these reports. She emphasized the goal of providing greater transparency in this process. Further, she explained that phase two is a more detailed assessment of jurisdiction, phase three looks at admissibility, and phase four determines if the investigation would be in the interest of justice. All of the current PE’s are in phase three, except Venezuela.
Second, the Prosecutor talked about the finalization of PE’s. She cited the several advancements made in multiple of the PE’s and said she hopes to reach decisions soon. She announced that she aims to reach a decision on all phase three PE’s before the end of her tenure, whether that be advancing to an investigation if criteria are met, not advancing to an investigation if criteria are not met, or publishing a detailed report if it is not yet time to make a decision. Regarding finalization, the Prosecutor addressed abstract timelines and noted they may fail to represent the complexities of PEs where more jurisdiction and admissibility issues need to be looked at. She lastly restated that many of the PE’s are in the stage in which a decision whether to proceed with an investigation is close to being reached.
Third, the Prosecutor addressed the operational capacity of the OTP. She highlighted the fact that there are many PE’s, but that the capacity to address all of them is lacking. This leads to prioritization of the selection of cases. While prioritization is a key term, she noted that we must be certain about what it means and how to apply it. The Prosecutor further noted that her office is at the breaking point to sustain its current activities and faces increasing operational challenges of cooperation and interference. She emphasized that stakeholders and the review process need to consider the heavy burdens and complex problems of the OTP to meet its mandate.
The floor then opened to questions. A representative from a group of NGOs from Colombia, Venezuela, and Mexico made a statement about PE’s in Latin America. Rod Rastan, Legal Advisor to the Office of the Prosecutor, responded by saying that activity in the region shows progress, but the OTP is assessing what that progress means and if the activity is genuine. He noted regarding Mexico that the OTP continues to receive communication on preliminary examinations already decided on and can always revisit them with new information. This was also a point the Prosecutor reiterated later when Dr. David Donat Cattin, Secretary-General of Parliamentarians for Global Action asked about the reopening of PE’s and the permanent storage of evidence.
Several participants, including Reuters Journalist Stephanie van den Berg, Raji Surani from PCHR, and a representative from Al Haq raised concerns over the Palestine PE. These questions focused on the length of this PE and the language the Prosecutor used in providing context for the situation in the report. Mr. Rastan and the Prosecutor responded to these questions by expressing their understanding of the deep frustrations felt, and noted they are trying to be as transparent as possible. They also reiterated that they are dealing with complex factual and legal issues and are grateful for the cooperation of the Palestinian authorities and NGOs.
Netsanet Belay from Amnesty International enquired int the Nigeria PE. Mr. Rastan and the Prosecutor reiterated their recognition of frustrations and noted that a decision on Nigeria would come before the Prosecutor's tenure ends. Additionally, they emphasized the commitment of the new Nigerian authorities in prosecuting individuals who committed international crimes domestically. The Prosecutor also mentioned the frank discussion she had with the Nigerian Vice President and Attorney General recently.
Deputy Prosecutor, James Stewart, took the opportunity to express his trust in the OTP’s staff. He noted that although the resources of the analysis section are few, they are of high quality. “The quality of the work done by the OTP is of the highest order,” he concluded.
The final question came from a legal advisor of the Polish embassy, who asked if the ICC would cooperate with the ICJ regarding the Bangladesh/Myanmar situation. Both the Prosecutor and Mr. Rastan, said they were two different institutions that follow their independent mandates. Nonetheless, they will follow each other's proceedings closely and will cooperate with all entities and fact-finding mechanisms in the process.
The Prosecutor concluded the event saying that pressure to her office is present, but that this pressure does not have any bearing on the work the OTP does in applying the law.