In November 2016, the Office of the Prosecutor (OTP) at the International Criminal Court (ICC) produced an extensive report documenting the status of ten "preliminary examinations" it is conducting. These examinations cover situations in which crimes under the jurisdiction of the Court may have been committed but the prosecutor has not yet decided to open a full investigation. (1) The OTP's reporting practice has shed additional light on a process that has been opaque for much of the Court's existence and that has attracted relatively limited scholarly and specialist attention. (2)
More regular and detailed OTP reporting, and information from other sources, makes closer consideration of the preliminary examination phase possible. Even if speculative in certain respects, this analysis is important given the attention and criticism that the ICC's process of selecting situations for full investigation has attracted. The Court's focus on African conflicts, in particular, has provoked tension between the Court and several African leaders and apparently contributed to several African states' withdrawal from the Rome Statute (the Statute). (3) Understanding the Court's situation-selection process requires greater scrutiny of the preliminary examination phase.
This article focuses on a particular aspect of the ICC's preliminary examinations: the distinction between examinations conducted on the prosecutor's own initiative (proprio motu) and those conducted as a result of member state or United Nations Security Council referral. The OTP has insisted that it conducts the same type of preliminary examination regardless of the way in which Court involvement was triggered. I argue that the prosecutor has, in practice, developed two quite different processes. For member state and Security Council referrals, the prosecutor conducts a review tilted sharply toward opening a full investigation. In proprio motu situations, the presumption appears to be reversed. This bifurcation has important implications for the Court's docket and, ultimately, for its independence. The ICC statute is an elaborate compromise between the prerogatives of states and the interests of justice, and the apparent deference given to state and Security Council referrals provides important perspective on how the prosecutor is striking that balance. The divergence between the OTP's stated policy and its record also sheds light on how the prosecutor's office is navigating the myriad pressures it faces.
I. THE PRELIMINARY EXAMINATION PROCESS
Most international courts and adjudicative bodies reserve for member states the power to initiate court action. The International Court of Justice, the World Trade Organization's dispute settlement system, and the Law of the Sea Tribunal, for example, all require that member states affirmatively trigger adjudication. (4) By contrast, the Rome Statute "vests the power to investigate and prosecute the politically sensitive crimes within its broad territorial sweep in a single individual, its independent prosecutor." (5) The ICC prosecutor's responsibility to select investigations from a range of situations places her in a very different position from most international judicial officials--but also from the prosecutors of other international criminal tribunals. The instruments that created those tribunals, including for the former Yugoslavia and Rwanda, defined the territorial and temporal boundaries within which...
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