Preliminary Examinations: Impact, Policies and Practices

CILRAP held a side-event to the 17th Session of the Assembly of States Parties of the International Criminal Court on ‘Preliminary Examinations: Impact, Policies and Practices’, co-hosted by Norway, Human Rights Watch (HRW) and Leiden University. The event aimed to address broader challenges in preliminary examinations. The event was chaired by Ambassador Martin Sørby (Norway’s Ambassador to the Netherlands). The panel included Ms. Elizabeth Evenson (HRW), Justice Richard J. Goldstone, CMN Deputy Director Dr. Emilie Hunter, Ms. Jimena Reyes (FIDH), Ms. Amy Khojasteh (Situation Analysis Section, ICC-OTP) and Professor Carsten Stahn (Leiden University).

The discussion commenced by examining challenges facing those who participate in the preliminary examination process before the International Criminal Court. The discussants recognized the importance of linkage when it comes to identifying patterns of crimes and connecting incidents. The discussion further emphasized the contribution and importance of engagement by NGOs in the process of preliminary examination. The panel focused on consistency, duration and discretion in the application of policy. The panelists agreed that limitations with respect to length of preliminary examinations must be acknowledged. Justice Goldstone noted that problems related to duration lead to “a decade of raising expectations and dashing them on the part of the victims”.

The side-event then considered the concept of complementarity and the impact of preliminary examination on domestic proceedings. The panelists stressed that the primary purpose of preliminary examination is not to encourage national proceedings, but rather to enable the prosecutor to make a decision on whether or not to proceed with an investigation. Positive complementarity is therefore seen as a secondary policy goal rather than a primary objective. Nonetheless, there was consensus that the involvement of external actors in encouraging national proceedings and co-operation between states and the ICC is essential to complementarity and the overall proceedings.