19TH SESSION OF THE ASSEMBLY OF STATES PARTIES
15 December 2020
Name of the Side Event: Launch of the ICC Office of the Prosecutor’s report on Preliminary Examination Activities 2020 (hosted by the ICC Office of the Prosecutor (OTP))
Report by: Raghavi Viswanath, Research Associate PILPG-NL
Highlights:
2020 saw four preliminary examinations reach completion, with the OTP deciding not to investigate the situation in Iraq/United Kingdom.
The OTP recently, on December 11, announced that the situations in Nigeria and Ukraine met the legal criteria for investigation.
The OTP continues to monitor domestic proceedings in Guinea and Colombia, developing a benchmark framework to be shared with stakeholders in 2021; it expects to complete subject-matter determination in the matter of the Philippines by mid-2021.
Summary of the Event:
The annual launch event, organized alongside the 19th ASP, saw ICC Prosecutor Fatou Bensouda present the final Preliminary Examinations Activities Report of her mandate. Bensouda began by reiterating the crucial filtering function preliminary examinations (PEs) fulfill in the architecture of the Office of the Prosecution (OTP). PEs help the OTP identify situations that merit investigation and allow the OTP to coordinate responses with domestic judicial mechanisms.
At the end of 2019, the OTP had expressed its intention to make a decision in several ongoing PEs in 2020, before the end of Bensouda’s tenure, and several PEs would advance to the investigation stage. Much in line with these predictions, the OTP concluded four preliminary examinations in 2020, with three of them – Palestine, Nigeria, and Ukraine – slated for investigation. The PE into the situation in Iraq/UK was closed with a decision not to open an investigation.
Prosecutor Bensouda took the opportunity of the launch to note the OTP’s most pressing challenge, as she has emphasized throughout her tenure: the chronic mismatch between the resources allotted to the OTP and the demands and expectations placed upon it. As the OTP strives to meet its projections, it is compelled to prioritize some situations over others. However, prioritization alone cannot resolve the resource gap as new situations become ripe for investigations and new changes occur in the life cycle of current cases/investigations. Therefore, she called on States Parties to recognize these challenges and equip her successor with the means necessary for the robust functioning of the OTP. In so doing, the OTP can implement its broader functional vision – of evidence preservation, operational planning, and witness management. In this regard, Bensouda further noted her intent to consult the incoming Prosecutor on all these complex issues.
Prosecutor Bensouda then provided updates on the situations covered in the OTP’s report. With respect to the situation in Palestine, the OTP found a reasonable basis to proceed, on account of war crimes committed in the West Bank including East Jerusalem and the Gaza strip. There was no reason to believe that an investigation would not serve the interests of justice. However, the Prosecutor found it necessary to confirm that the ICC could in fact exercise jurisdiction. Given that the sovereignty of Palestine was an issue of fundamental importance, it would certainly be litigated during the life cycle of the situation. The Prosecutor saw merit in clarifying jurisdictional scope early on, so as to clear the subsequent path for effective investigation.
On the situation in Afghanistan, which is already at the stage of investigation, the Prosecutor announced that her Office had received a request for deferral from the State of Afghanistan under Article 18 of the Rome Statute. The OTP agreed to Afghanistan’s request to provide for additional time due to COVID-19 and hopes to receive an update from Afghanistan early next year.
The Prosecutor then addressed her recent decision no to investigate the situation in Iraq/UK. Lamenting the criticisms her decision has been receiving, she defended it as an intellectually honest effort to apply the law to the facts. The central question in Iraq/UK was whether the authorities in the UK had taken steps to shield suspects from criminal accountability. Here, the OTP sets out a two-fold requirement. First, it needs to be satisfied under Rule 48 of the Court’s Rules that shielding occurred. Second, given that the involved states may ask for a deferral under Article 18 of the Statute, the OTP has to be able to demonstrate why the domestic processes are inadequate in order to persuade the Court not to act on the deferral request. In this case, her Office was unable to substantiate the allegations of shielding or evidence of genuine unwillingness on part of domestic authorities to investigate or prosecute the perpetrators. Therefore, it would have been disingenuous for the OTP to find otherwise, she noted, specifically referencing her well-known record of taking decisions without fear or favour (“I was the one sanctioned doing my job by the book and will continue to do so”). The Prosecutor hoped that time would allow the Court’s friends to soberly reflect on the OTP’s decision.
Addressing other key developments, Bensouda referred to her December 11 announcements that the situations in Nigeria and Ukraine met the legal criteria to open an investigation. The insurgency led by Boko Haram and the counter-insurgency had resulted in unprecedented violence that has already claimed 41,000 lives. While a greater degree of responsibility rests with Boko Haram, both sides appear to have committed war crimes and crimes against humanity. Meanwhile, in Ukraine, the ongoing armed conflict in Eastern Ukraine has resulted in 10,000 deaths and many thousand civilians injured over the past six and a half years. The OTP found evidence of intentional attacks directed against civilians and civilian objects, including in Crimea. With respect to both Nigeria and Ukraine, the OTP has extended its support to domestic investigations and prosecutorial efforts.
The OTP has also made progress in other examinations. In Venezuela, it recently published findings on subject matter jurisdiction. Both in Guinea and Colombia, the OTP continues to assess domestic proceedings and intends to share a benchmark framework with all stakeholders for comments, that can be transplanted in future examinations. Finally, on the examination of the Philippines, although impacted by the COVID-19 pandemic, the OTP expects to arrive at a decision in the first half of 2021. In addition to these, the OTP hopes to complete subject matter determinations on the new referrals by Venezuela and Bolivia by mid-2021.
The Prosecutor concluded her presentation by addressing changes introduced to prosecutorial policies/practices. The OTP has now begun to undertake gender analyses in its PEs – where it assesses how the underlying gender norms influence the commission of crimes. This is relevant both for the identification of crimes as well as the determination of gravity. In an effort to enhance the effectiveness and efficiency of PEs, the OTP has also begun integrating its preliminary examination teams early, assigning senior lawyers and analysts to all sub-teams in order to facilitate internal harmonization and knowledge transfer, and contributing to the preparation for the operational roll-out of future investigations.
The launch event ended with questions from the audience. This saw the OTP team engage with challenging questions on the examination in Venezuela, Guinea, and Iraq/UK. Responding to a question about the selection of particular crimes in Venezuela, Rod Rastan from the OTP observed that at the stage of opening a situation/filing an article 15 request, the OTP focuses on one or more episodes of violence that are representative of the broader victimization that permeates the community under scrutiny. At this stage, the OTP cannot engage in a more comprehensive investigation of all the crimes committed. However, once the Article 15 threshold is crossed, these crimes are covered. In conclusion, the OTP team spoke of how the handover preparations are underway, with the Office working on a code of conduct and a legacy document. Prosecutor Bensouda reiterated the need to enlarge the OTP’s resources in order to increase its productivity. She ended the event with a note of thanks to the friends of the Court and the many interlocutors whose feedback allowed her mandate to be so fruitful.