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.
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 the prosecutors were to work; the ICC prosecutor has few such limitations.
The Rome Statute attempts to address this new reality in part through the preliminary examination, "an important and necessary innovation compared to the pre-trial procedure of former International Criminal Tribunals.... " (6) The Statute makes the prosecutor's office responsible for "receiving referrals and any substantiated information on crimes within the jurisdiction of the Court, for examining them and for conducting investigations and prosecutions before the Court." (7) The phrase "preliminary examination" appears only once in the Statute and is not precisely defined. (8) It has been usefully described as "the investigative steps which the Prosecutor may take after he or she is seized of a situation but prior to his or her determination of whether there is a reasonable basis to proceed with an investigation.... " (9) There is little in the Statute regarding how the prosecutor should conduct this preliminary work, and one commentator has argued that the document "offers no real guidance on the criteria that the Prosecutor is to apply in making determinations about which situations to pursue and which ones to ignore." (10) Indeed, several provisions create confusion about the standards that apply to these examinations and, in particular, how much deference the prosecutor should give to state preferences.
The Statute provides that three well-known mechanisms may "trigger" ICC inquiries. (11) First, a member state may refer a situation to the Court. Second, the UN Security Council, acting under Chapter VII of the UN Charter, may do so. Finally, the prosecutor may seek to initiate an investigation on her own. (12) This proprio motu power of the prosecutor was debated at length during the Rome Conference; it survived despite the strong opposition of several countries, including the United States. (13) The three principal trigger mechanisms--Council referral, member state referral, and proprio motu initiation--correspond to very different environments for the Court in terms of state support for its work. At one end of the spectrum, a Security Council referral means that the leading international authority on peace and security--and therefore several of the most powerful states--desire Court involvement in a given situation. (14) A member state referral means that at least one government, likely although not necessarily one directly affected by alleged crimes, seeks Court action. (15) By contrast, a proprio motu situation could mean that the prosecutor has received information about possible crimes primarily from nongovernmental sources and that no member state supports--or is willing to acknowledge support for--Court action. A key question is whether the prosecutor should conduct preliminary examinations with the same receptivity to opening a full investigation notwithstanding these potentially significant differences in state support.
Certain provisions of the Statute suggest uniformity in the preliminary examination process. Article 53, which guides the prosecutor in determining whether to open a full investigation, provides only that the prosecutor shall evaluate "the information made available to him or her" and determine if there is a "reasonable basis" to proceed with a full investigation. (16) The wording of Article 53 suggests that this test is "applied in the same manner to all triggers.... " (17) The provision also implies that a full investigation is the default course of action; the prosecutor shall initiate an investigation unless there is no reasonable basis to proceed. (18) Yet other elements of the Statute lead to the conclusion that the trigger mechanism should affect the preliminary examination process. Article 15, which describes the proprio motu power of the prosecutor, provides that the prosecutor shall petition to open a full investigation, "if [she] concludes that there is a reasonable basis to proceed." (19) Juxtaposing the phrasing of Articles 15 and 53, the OTP itself has noted that the prosecutor begins referral and proprio motu preliminary examinations at different points:
Where the prosecutor receives a referral, Article 53 provides that the Prosecutor shall initiate an investigation unless he determines that there is no reasonable basis to proceed under the Statute.... When the Prosecutor receives a communication, the test is the same but the starting point is reversed: the Prosecutor shall not seek to initiate an investigation unless he first concludes that there is a reasonable basis to proceed. (20) The statutory case for differentiated preliminary examinations does not rest solely on the relationship between Articles 15 and 53. The provision on preliminary admissibility challenges, Article 18, also distinguishes between different triggers. It provides mechanisms through which states can demonstrate to the Court that they are investigating a given situation and thereby prevent the prosecutor from opening a full investigation due to complementarity. Yet Article 18 refers only to investigations begun through member state referral or proprio motu action. (21) The omission of the Security Council trigger implies that states cannot challenge admissibility, at least at an early stage, when the Council has referred a situation. The unstated corollary is that the prosecutor need not conduct a full admissibility assessment during the preliminary examination of a Council referral. (22) The apparent removal of such a significant obstacle has led some observers to argue that the Statute creates a "fast-track" process for Council referrals. (23)
Viewed together, Articles 15, 18, and 53 suggest different levels of substantive review during the preliminary examination phase. One scholar has advocated several distinct standards, with Security Council referrals receiving the least scrutiny from the prosecutor and proprio motu situations the greatest. (24) In addition to the textual support described, this interpretation has a political logic, at least from a perspective that is respectful of state authority. The prosecutor might feel most confident that a proposed investigation has merit when the fifteen-member Security Council has recommended it. Referral by a member state also gives the prosecutor some reassurance but deserves greater independent analysis. The prosecutor should be most cautious when no state has referred. However plausible, the Statute certainly does not require this reading, and the...