"Preliminary examinations are like an iron door that is very difficult to get through" – is how one civil society representative felt about trying to get the International Criminal Court (ICC) Office of the Prosecutor to look into alleged atrocity crimes, according to a 2020 report by the International Federation for Human Rights (FIDH). “There is huge unclarity,” says Amal Nassar, former FIDH representative to the court, which “continues,” she says, despite the Office of the Prosecutor’s regular reports on “communications” it receives and how they are processed into preliminary examinations (the stage before a full investigation by the ICC).
“Communications” is the official word at the ICC for what could amount in other legal systems to a complaint if such a legal avenue was allowed before the international court, or for what is more generally a way for NGOs to lobby the court, specifically the Prosecutor’s Office.
In the twenty plus years since the ICC was founded it’s received at least 15,000 communications of which more than 700 were considered potentially “warranting further analysis” - a bit of internal jargon, to describe the initial filtering process.
The vast majority of communications received by The Hague-based court are “manifestly outside the Court’s jurisdiction,” according to the ICC regular reports on preliminary examinations since 2011. Some other bits submitted are linked to an ongoing preliminary examination or an investigation, while out of the initial 700 plus potential pieces of information which have had an in-depth factual and legal assessment of the allegations and the situation, only about 50 have gone on to be fully analysed under the criteria below.
The ICC Prosecutor’s “filtering process”
The process was outlined a decade ago in a policy paper, where a “filtering process comprising four phases” is described. The phases include assessment of jurisdiction, whether the alleged crimes fall under the court’s mandate, whether there are local trials, and whether it would be in the interests of justice to proceed.
While there was previously a separate unit for preliminary examinations at the Prosecutor’s Office, under the current prosecutor Karim Khan, much of the Office’s work is now organised into country teams dealing with all aspects of investigations and prosecution, under two deputy prosecutors. The only exception is Ukraine which is handled directly by the Prosecutor. But preliminary examinations fall under deputy prosecutor Nazhat Shameem Khan (no relation to Karim Khan).
“All information received is processed, reviewed extensively and as required further developed towards becoming evidence,” says Cristina Ribeiro, senior coordinator of investigations and analysis at the ICC Prosecutor’s Office. “Prior to opening an investigation, they [these communications] represent an important part of our starting point.”
Unclear criteria for selection
The 2020 Independent Expert Review which came up with more than 350 changes needed to improve the ICC, summarised the Office of the Prosecutor’s approach to the consideration of communications as “conservative”. It noted that any decisions about which communications to take further and to turn into investigations is very much up to the Prosecutor. Of course, the Prosecutor has to have “discretion and independence” but “making these criteria explicit may be beneficial,” they said.
According to the experts’ report five preliminary examinations have opened via information that has come into the court: Venezuela, the Philippines, Bangladesh (Myanmar), Burundi, and the reopening of the situation concerning the conduct of the British forces in Iraq.
Megan Hirst, a British criminal lawyer, lauds the system in principle: “Everyone is open to lobby the court” and “the Office of the Prosecutor should be able to receive the maximum input”. But 90% of all the analyses of communications, “are dismissed by the prosecutor”, which “poses the question as to the criteria applied by the Prosecutor in deciding to open a preliminary examination”, said the experts. “It remains difficult to assess the criteria used by the Prosecutor, as they are not transparent.”
At an event last month about court-civil society organisations relations, deputy prosecutor Mame Mandiaye Niang said “I don’t like the term lobbying”, stressing that the prosecutor’s independence is “at the core of the credibility of the court”. While the court is open to input, their priorities have to be state and UN Security Council referrals, he said. Issues like gravity come into play, along with resources. “Our full-fledged capacity allows us to look at not more than 8 situations,” he said. And “we are already at 11 situations... I don’t want to be there without the resources to deliver.”
“In practice,” says Hirst, “it’s not clear to see from the outside how often the communications actually influence the Prosecution’s choice of case or contribute to an investigation. If you are an NGO, trying to submit a useful communication to the [Office of the Prosecutor] it can be difficult.”
“For one communication that we submit, it's between one year to two years of work,” says Jimena Reyes, director of the Americas Office of FIDH. “And obviously it's quite frustrating when nothing happens like the case of Mexico, where there's not even a preliminary examination that has been offered.” Reyes remembers how victims’ organisations also staged a demonstration outside the court around the sculpture donated by the Mexican authorities called ‘wings of justice’, to “state our disagreement with the fact that nothing happens” after submitting information of cases involving thousands of people.
“Maybe it's not easy for the Office of the Prosecutor to be candid about case selection and how decisions are made. But that’s where their energy needs to go. I'm not saying that everyone will be happy when they know about decisions, but they need better transparency and communication on these decisions,” Hirst says.
Why do NGOs do it?
Ribeiro acknowledges that NGO communications are "becoming really sophisticated" and some have "many different types of evidence, including preserved online materials”.
Against that backdrop, where very few communications make it through the ‘iron door’, but most do not, why do NGOs continue to send their information in to the court? Nassar says that the reasons are not uniform just as NGOs are not uniform. Hirst cautions that “every [NGO] has their own interests and levels of skills”.
Kate Gibson, a British defence lawyer, who’s appeared in several trials before the ICC, notes the different reasons why NGOs decide to file communications: "Some communications are incredibly detailed, and are geared towards the Prosecution opening an investigation. Other civil society organisations use communications as an advocacy exercise. Some situations are politically fraught and submitting a communication to the Office of the Prosecutor can be a really good way of drawing attention to a particular crime base."
Reyes points to the success in submitting information to the Office of the Prosecutor resulting in the preliminary examination in Colombia which outlined for the first time that “they considered that there is a basis to believe that crimes against humanity were committed in Colombia. It was the first time that someone said that crimes against humanity were being committed by militaries and by the FARC [the main guerrilla in Colombia’s conflict], and by paramilitaries. And it really played a very important role in triggering justice”.
Other constraints and pitfalls
Do communications and civil society organisations follow-up potentially cause issues later on in trials? “There is a view that civil society efforts are directed towards prosecuting perpetrators so greater collaboration between civil society organisations and the Office of the Prosecutor increases the inequality of arms between the Prosecutor and the Defence. But this is too simplistic,” says Gibson. “The greater concern is that the increased partnership between civil society organisations and the Prosecutor plays into this entrenched idea that the Court exists as a mechanism for ending impunity, and increasing accountability. And when we set ourselves the goal of preventing impunity, the risk is that acquittals are seen as failures, as something having gone wrong, and convictions are seen as everything having worked properly.”
Groups that file communications do not always circulate their filings publicly. Nassar notes a variety of reasons like “confidentiality and security” but, she says, it may also be “to distinguish it from other advocacy efforts”. Their rationale can be that not publicising them may strengthen the privileged relationship they seek with the ICC Prosecutor and establish their reliability and credibility. They sometimes also name alleged perpetrators and worry that the disclosure of their submission would have the countereffect of undermining the very possibility to arrest the suspects. For example, there have been specific communications on crimes in Ukraine for years without any disclosure byt the submitting organisations nor any move by the prosecution. The reluctance of some NGOs to make their communications public may add to the lack of transparency of the whole system.
But in acknowledgement of the usefulness of NGO communications Ribeiro says: "The more sophisticated they are, the better the basis for the investigation, so hooray to that."