Damned If You Do, Damned If You Don't: Challenges and critiques of preliminary examinations at the ICC

Preliminary examinations are one of the most important, yet under studied elements of International Criminal Court (ICC) practice. Hardly any policy document raises greater anxiety than the yearly Office of the Prosecutor (OTP) report on preliminary examinations. The current docket covers some of the world's most daunting crises (e.g. Ukraine, Palestine, Iraq and Afghanistan).When the Rome Statute was drafted, little attention was devoted to preliminary examination. Most work on international criminal procedure focuses on investigations. This contribution shows that preliminary examinations have turned partly into a new species of proceedings, somewhere between internal analysis, atrocity alert, and monitoring of situations. The OTP Strategic Plan (2016-2018) associates preliminary examination with ambitious rationales, such as early warning, deterrence, or complementarity. But the functioning, purpose and effectiveness of preliminary examinations remain contested. There is a significant gap between expectations and reality. This contribution revisits some of the competing approaches to preliminary examinations in particular, and ICC practice in general: the grey zones in the legal framework and emerging methodological challenges (e.g. phase-based approach, prioritization, confidentiality v. transparency). It argues that certain dilemmas will never fully go away and do not necessarily lend themselves to abstract legal regulation. But it suggests certain improvements to practice, including deeper engagement with situations and their context, a better connection between atrocity alert and complementarity strategies, and a more thorough explanation of choices not to proceed. The longer a preliminary examination lasts, the more pressing these requirements become.