Stahn: Damned If You Do, Damned If You Don't: Challenges and Critiques of ICC Preliminary Examinations

Carsten Stahn (Leiden Univ. - Law) has posted Damned If You Do, Damned If You Don't: Challenges and Critiques of ICC Preliminary Examinations. Here's the abstract:

Preliminary examinations are one of the most important, yet understudied elements of ICC practice. Hardly any policy document raises greater anxiety than the yearly OTP report on preliminary examinations. The existing docket covers some of the world’s most daunting crises (e.g., Ukraine, Palestine, Iraq, Afghanistan). When the Rome Statute was drafted, little attention was devoted to preliminary examination. Most works on international criminal procedure focus on investigations. This contribution shows that preliminary examinations have turned into a partly new species of proceedings which navigate 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 effects of preliminary examinations remain contested. There is a significant gap between expectation and reality. This contribution re-visits some of the competing approaches in ICC practice, gray zones in the legal framework and emerging methodological challenges (e.g., phased-based approach, prioritization, confidentiality vs. 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 prerogatives become.