The Prosecutor of the International Criminal Court ("ICC" or the "Court"), Mrs Fatou Bensouda, today published her annual Report on Preliminary Examination Activities. The report details the preliminary examination activities carried out by the Office of the Prosecutor ("OTP" or "Office") during the period 6 December 2019 – 14 December 2020, in relation to ten situations under preliminary examination.
During the reporting period, the Office sought to make substantial progress towards the goal set out in the Prosecutor's statement, delivered at the 2019 session of the Assembly of States Parties, to reach determinations on all situations that have been under preliminary examination during her tenure to the extent possible. That is, to decide: (1) whether the legal criteria under the Rome Statute are met for opening an investigation, (2) whether a decision should be taken not to proceed with an investigation, because the statutory criteria have not been met, or (3) if, exceptionally, a situation is not ripe for a determination, to issue a detailed report stating why a particular situation should remain under preliminary examination and to indicate relevant benchmarks that should guide the process.
Four preliminary examinations were completed during the course of the past year: with respect to the situations in Palestine, Iraq/UK, Ukraine and Nigeria.
The Office commenced two new preliminary examinations following State Party referrals received from the Government of Venezuela and the Government of Bolivia.
The Office also announced its subject-matter determination with respect to the Situation in Venezuela I, and continued to advance its assessment with respect to the situations in Colombia, Guinea, and the Philippines.
With respect to the situation in Afghanistan, which remained under preliminary examination pending an appeal, the Appeals Chamber decided unanimously on 5 March 2020, to authorise the Prosecutor to commence an investigation into alleged crimes under the jurisdiction of the Court in relation to the situation. That matter is now subject to a pending article 18 deferral request.
With respect to Palestine, Pre-Trial Chamber I's decision on the Prosecutor's request for a ruling confirming the scope of the Court's territorial jurisdiction in the situation remains pending.
Additionally, during the reporting period, the Office responded to the senders of communications with respect to five situations that had been subject to further analysis and reached conclusion, summaries of which are included in this year's report.
Notwithstanding the challenges to operations caused by the COVID-19 pandemic, the Office has ensured business continuity, including by holding numerous consultations with State authorities, representatives of international and non-government organisations, article 15 communication senders and other interested parties, either virtually, or at the seat of the Court with strict adherence to the safety measures required in light of the pandemic.
The report provides a summary of the status of each situation under preliminary examination, including the Office's current assessment with regard to issues of jurisdiction and admissibility, as well as summarising the measures taken by the OTP during 2020 to enhance the overall efficiency and effectiveness of the preliminary examination process.
By publishing such reports annually, the Office aims to promote public awareness and transparency regarding implementation of its preliminary examination policy paper.
This is the tenth annual Report on Preliminary Examination Activities published by the Office. The Office began releasing these reports in 2011, with publication timed to coincide with the annual meeting of the Assembly of States Parties.
Under the Rome Statute, the Office is required to conduct an examination of all communications and situations brought to its attention in order to determine whether there is a reasonable basis to proceed with an investigation. The factors set out in article 53(1)(a)-(c) of the Rome Statute establish the legal framework for a preliminary examination. In order to determine whether there is a reasonable basis to proceed with an investigation, the Prosecutor shall consider jurisdiction (temporal, either territorial or personal, and material); admissibility (complementarity and gravity), and the interests of justice.
The Office of the Prosecutor of the ICC conducts independent and impartial preliminary examinations, investigations and prosecutions of the crime of genocide, crimes against humanity, war crimes and the crime of aggression. Since 2003, the Office has been conducting investigations in multiple situations within the ICC's jurisdiction, namely in Uganda; the Democratic Republic of the Congo; Darfur, Sudan; the Central African Republic (two distinct situations); Kenya; Libya; Côte d'Ivoire; Mali; Georgia, Burundi Bangladesh/Myanmar and Afghanistan (subject to a pending article 18 deferral request). The Office is also currently conducting preliminary examinations relating to the situations in Bolivia; Colombia; Guinea; the Philippines; and Venezuela (I and II), while the situation in Palestine is pending a judicial ruling.
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