On 14 November 2016, the International Criminal Court’s (ICC) Office of the Prosecutor (OTP) issued its latest Report on Preliminary Examination Activities (Report). The Report sets out, in general, the OTP’s efforts in conducting preliminary examinations of communications and situations to determine whether under the Rome Statute investigations are warranted.(( Report on Preliminary Examination Activities, 14 November 2016, (Report), para. 1, citing Policy Paper on Preliminary Examinations, November 2013.)) The overarching goals of a preliminary examination are “the ending of impunity, by encouraging genuine national proceedings, and the prevention of crimes … potentially obviating the need for the Court’s intervention.”(( Report, para. 16.))
The Report is clear, concise, and informative. Rather than discuss all the details of the OTP’s activities, I will merely focus on the three preliminary examinations: the situation in Afghanistan, specifically the alleged crimes committed by the United States (US) armed forces and citizens acting on behalf of the US, the situation in Ukraine, and the OTP’s reconsideration of the situation related to Israel (registered vessels of Comoros, Greece, and Cambodia – the Mavi Marmara incident).
This is the first post of a three-post series. I hope to explore the pros and cons of pursuing examinations against non-signatory states that are also permanent members of the UN Security Council (and are unlikely to allow their nationals to be prosecuted at the ICC), and whether the Pre-Trial Chamber’s request to the OTP to reconsider the decision not to initiate an investigation into the Mavi Marmara incident is merited or based on dubious political considerations.(( In November 2014, the OTP completed its preliminary examination into the Mavi Marmara incident with a decision not to proceed with an investigation because the potential case(s) would be of insufficient gravity. See ICC-OTP, Article 53(1) Report, 6 November 2014, para. 150. In January 2015, the Comoros applied for review of this decision before the Pre-Trial Chamber. Based on this application, the Pre-Trial Chamber requested the OTP to reconsider its decision. See Situation in the Registered vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, ICC-01/13, Application for Review pursuant to Article 53(3)(a) of the Prosecutor’s Decision of 6 November 2014 not to initiate an investigation in the Situation, 29 January 2015; Decision on the Request of the Union of the Comoros to review the Prosecutor’s Decision not to Initiate an Investigation, 16 July 2015.)) Continue reading “The ICC-OTP’s November 2016 Report on Preliminary Examination Activities: Some Observations”