Overview by Isabella Banks, Research Associate PILPG NL
NGOs accustomed to human rights documentation face a number of challenges in contributing evidence that is relevant to the preliminary examinations of the ICC.
There is disagreement on whether or not preliminary examinations should be used as a complementarity strategy to advance national justice.
The duration of preliminary examinations is due in part to the scope and complexity of ICC situations and in part to resource constraints of the Office of the Prosecutor (OTP).
The primary purpose of preliminary examinations is not to encourage national proceedings but no inform the Prosecutor’s decision about whether or not to open an investigation.
Co-hosted by Norway, the Centre for International Law Research and Policy (CILR), Human Rights Watch (HRW), and Leiden University, this side event focused on the challenges faced by those who participate in the International Criminal Court’s (ICC) preliminary examination process. Chair and Norwegian Ambassador Martin Sørby opened the event by explaining its origins: the “Quality Control in Preliminary Examination: Reviewing Impact, Policies and Practices” report co-published by CILR and the “Pressure Point: The ICC’s Impact on National Justice” report published by HRW.
Before the roundtable began, Ambassador Sørby introduced the speakers: Jimena Reyes of the Fédération Internationale des ligues des droits de l’Homme (FIDH); Emilie Hunter of the Case Matrix Network; Amitis Khojasteh of the ICC Office of the Prosecutor (OTP); Elisabeth Everson of HRW; Justice Richard J. Goldstone, a former judge in South Africa and prosecutor at the International Criminal Tribunals for Yugoslavia and Rwanda; and Professor Carsten Stahn of the Grotius Centre for International Studies at Leiden University.
Ms. Reyes discussed the primary challenges that NGOs accustomed to human rights documentation face in contributing to an ICC preliminary investigation. The first is the change of evidentiary standards. Local capacity building is necessary to ensure that legal actors in the places where the crimes were committed are able to contribute meaningfully to the investigation. With reference to a capacity building workshop that FIDH hosted in Colombia prior to the ICC’s first visit there in 2004, she described how these efforts have a direct impact on the quality of sources and information identified.
The second challenge is building trust between local lawyers and NGOs. In order to contribute to a preliminary examination, NGOs must obtain a wide universe of cases and identify patterns. This is not possible without working relationships with those who have access to these files. She concluded by raising the question of whether local lawyers and NGOs should even be conducting criminal investigation in light of the security risks for victims.
Dr. Hunter agreed that the evidentiary standard at the ICC is higher than that of human rights investigations and added that international crimes usually occur on a scale that exceeds the limits of human rights documentation practices. For example, there is a tendency for human rights organizations to rely heavily on witness statements, whereas international criminal investigations typically depend on data and advanced analytic techniques. Criminal proceedings have different legal requirements than human rights proceedings. She therefore called for international criminal law focused documentation practices for the purposes of ICC communications. She spoke about how Case Matrix Network– which provides capacity development services to national and international actors – works with proof-charts to empirically map case law and show the different types of evidence that can be used before international tribunals. Their strategic intention is to address linkage issues and help identify a pattern of crime that connects multiple incidents, the organizations involved, and their structures and hierarchies of control. She concluded by acknowledging that there are limitations to what NGOs can achieve in this regard but also noted that new methods such as open source data and data mining represent significant opportunities.
Ms. Khojasteh of the ICC OTP first of all acknowledged the contribution that NGOs make to the preliminary investigation process. She stated that the information submitted by NGOs can greatly inform the ICC’s assessment of whether or not to open an investigation. She also noted that her office has seen an improvement in the quality of the research submitted by NGOs in terms of content, structure, and methodological clarity. She attributed this partially to the OTP’s recent efforts to promote transparency and clarify what is expected of NGOs.
According to Ms. Khojasteh, the ICC does not expect NGOs to conduct criminal investigations – especially considering that the “reasonable basis” standard is much lower than the standard used in court. The OTP does not task NGOs with information collection or outsource its assessments. The office has an open-door policy with international NGOs and is happy to provide guidance about what kind of information is most useful but does not have excessive expectations. Responding to early observations about differences in sources of evidence, she affirmed that witness statements have limited utility in many cases and that social media, satellite imagery, videos, and photos are more relevant.
Responding to Ms. Khojasteh’s comments, Justice Goldstone warned that as a friend and supporter of the ICC he would be critical. He stated that the duration and consistency of preliminary examinations send an important message to victim. As a former international prosecutor, he criticized the excessive duration of many of the preliminary examinations of the past and the way they were used as an “almost permanent” mechanism of complementarity. He called for greater consistency and consideration for the victims. In conclusion, he emphasized the importance of the ICC’s credibility and remarked that this was an area for significant improvement if the Court wanted to receive support from States Parties and attract new States Parties.
Dr. Stahn spoke next, noting that preliminary examinations are under-regulated in the Rome Statute and that they should therefore be handled as a “construction site.” Referencing research conducted at Leiden University as well as an ongoing blog debate on EJIL Talk!, he stressed the need for the OTP to exercise a certain amount of discretion in selecting cases given the flexibility of the “gravity” threshold. He surmised that the ICC can take one of two approaches to preliminary examinations: it can either treat them as a filter for investigations, or it can regard them as having value of their own. If the second approach is taken, the OTP may need additional resources in order to be effective. He added out that the impact of new technologies such as open source and e-evidence should be studied in greater detail.
Ms. Khojasteh responded to the most common criticism of preliminary examinations: their duration. She was sympathetic to the frustrations of relevant and agreed that there is room for the OTP to improve. She noted that in order to understand the duration of preliminary investigations, it was important to be aware of complexity and scope of the situations which come before the ICC. She also drew attention to the OTP’s very limited resources, and noted that all members of her team work on more than one preliminary examination at a particular time. She questioned whether it was a good idea for the ICC to prioritize certain preliminary investigations – and if so – on what basis? Lastly, she reminded the panel that time was not wasted during the preliminary investigations as they often had a significant impact on subsequent investigations.
Ms. Evenson expressed support for the possibility of preliminary examinations being used secondarily as a mechanism of complementarity, but was quick to qualify this statement. She highlighted the “Pressure Point” report published by HRW and summarized its findings: expectations of what the OTP can achieve need to be very realistic because of its limited resources. The report analyzes four case studies where there have been national investigations but no trials (with the exception of Colombia). She said that the case studies represent a challenge for the OTP but also highlight some positive steps that have been made in the four countries as a result of the OTP’s involvement.
Addressing Ms. Khojasteh, Ms. Evenson recommended deeper engagement and greater public presence on the part of the Court. She also stressed the need for balance between keeping a space open for national investigation but also taking a decisive action when the process was excessively delayed. She suggested that greater confrontation with state authorities may be necessary to achieve this. She also pointed out that the OTP cannot do this alone, and called on States Parties to support and amplify the OTP’s efforts.
In a final round of comments, each speaker contributed their final thoughts. Ms. Reyes acknowledged the significance of the OTP’s budgetary constraints and stressed the need for clear benchmarks to facilitate the move to investigation in cases involving a robust but inactive judiciary. Dr. Stahn proposed that the OTP take on fewer preliminary examinations and conduct them with greater intensity to reduce the existing bottleneck. He also warned that using preliminary investigations as a mechanism of complementarity may have the unintended side effect of state actors catering to ICC demands rather than pursuing a broader accountability initiative. Ms. Khojasteh responded that while it can be a policy goal, the primary purpose of preliminary investigations it not to encourage national proceedings but no inform the Prosecutor’s decision about whether or not to open an investigation. Ms. Evenson added that the ICC is actively working to make the early stage of preliminary examinations more efficient. n conclusion, Justice Goldstone stated that if preliminary examinations are to be used as a strategy for complementarity, the ICC should be transparent about this.