(co-hosted by Bulgaria, Niger, Norway, Senegal, Slovenia, Tunisia, Uruguay, and the ICC Office of the Prosecutor (OTP))
Overview by Emma Bakkum, Senior Research Associate PILPG NL
ICC Prosecutor Ms. Fatou Bensouda launched the OTP’s report on Preliminary Examination Activities of 2018 and discussed lessons learned from the past year.
Ms. Bensouda stated that threats made against the ICC would neither influence decisions of the OTP nor deter the OTP from its work. States and civil society should stand ready to support the Court, she added.
ICC Prosecutor Fatou Bensouda launched the Office of The Prosecutor’s (OTP) report on the 2018 Preliminary Examination Activities during this side event on the fifth day of the 17th Assembly of States Parties.
Bensouda opened the event by reiterating that the aim of this annual report is to enhance understanding of the core activities of the preliminary examinations and to further transparency of the OTP activities in these examinations. She touched upon the current status of the preliminary examinations: three new examinations are opened (The Philippines, Venezuela, Myanmar/Bangladesh), two situations are referred for preliminary examination (Palestine and Venezuela), one preliminary examination is closed (Gabon), and the Prosecutor requested authorization to proceed with an investigation in the case of Afghanistan. Furthermore, the OTP continued its preliminary examinations of the situations in Colombia, Guinea, Iraq/United Kingdom, Nigeria, Palestine, and Ukraine.
Bensouda underlined the effort that went into these investigations notwithstanding the limited resources of the OTP. She indicated several lessons learned from this year’s preliminary examinations: First, the ICC and its supporters need to be ready to face upcoming challenges. She added that we live in a world where war and conflict lead to reported violence, and each time the question asked is: what is the ICC doing about this? The ICC needs support of all States Parties for the Court to face the demands and challenges of justice.
Following, Bensouda explained the complexity and duration of preliminary examinations (PEs). She stated that PEs involve a dynamic process and each situation has to be addressed on its own, there is no prescribed duration for preliminary examinations. Factors that affect the duration are complexity and the extremely limited resources available to the OTP. However, Bensouda stressed that the PE process sets the stage for future investigations. Thus, “time spend on PEs is not wasted. It is invested in future investigations.” Furthermore, the OTP stated to seek building synergies between the stage of preliminary examination and investigations, in order to preserve and protect sources of evidence. Continuing with the topic of resources, Bensouda, noting that millions of victims have high expectations on what the ICC should deliver, underlined that it is extremely difficult to prioritize among victim groups. The Rome Statute does not provide authority nor guidance to do so.
Finally, Bensouda stressed the principle of complementarity as an important factor on the duration of preliminary examinations, referring to Guinea and Colombia as examples.
Bensouda concluded with thanking her staff after having underlined that preliminary examinations require time and support from all those involved.
Several questions arose from the full room of audience about situations in e.g. Palestine and Afghanistan as well as crimes committed in Nigeria and Mexico. Specific attention was drawn to the threats made against the Court. Bensouda responded that threats would neither influence decisions of the OTP nor deter the OTP from its work. The important work the OTP was mandated to do should not be stopped because of intimidations or threats. States and civil society should stand ready to support the Court, she added.
Answering a question from the audience with regard to PEs aiming at complementarity, Bensouda stated that this was a goal of the preliminary examinations process. As much as the OTP could, it tried to encourage domestic jurisdictions to investigate and prosecute those responsible for international crimes, she noted referring to the example of Guinee and Colombia. James Stewart, Deputy Prosecutor, added to this, that the OTP discovered that in some situations, complementarity could be reached through the admissibly assessment.
Referring to the situation in Afghanistan, a question was related to the earlier mentioned synergy between the PEs stage and investigation stage and what the OTP has been able to do in this regard. This was followed by question on the exclusion of the situation in Afghanistan in the 2019 budget: if an investigation is opened, how is the OTP going to have the proper resources? Bensouda answered that the application had been made and that it was now up to the judges to come to a decisions. The OTP cannot take any action to pre-empt that decision. In these cases, the OTP could look at the contingency budget to be able to move with a situation since the OTP cannot formulate a budget withouth a decision. However, she noted, mapping has been done and steps have been taken to prepare. Bensouda concluded on the topic of Afghanistan that the change of the Pre-Trial Chamber has affected the duration of the decision upon her request.
In response to questions about the crimes committed in Nigeria, the OTP indicated that it continues to assess the situation and that interaction with national authorities was ongoing. Relatedly, Bensouda answered a question with regards to the ICC’s relation with the African Union, stating that this relationship has improved. Bensouda noted the efforts that have been made to reach out to the AU but that the dialogue needs to be continued.