Quality Control in Preliminary Examination: Reviewing Impact, Policies and Practices

One of the most critical steps towards criminal justice for core international crimes – be it in national or international jurisdictions – is the exercise of discretion to determine whether there is a reasonable or sufficient basis to proceed to a full criminal investigation without which there is no prosecution. This pre-investigative stage is known under different names, including ‘preliminary examination’ (‘PE’) which is used generically for the purposes of this project. Criminal procedure regimes usually set a threshold for the assessment of the seriousness of available incriminating information – such as “reasonable basis to proceed with an investigation” in Article 15(3) of the Statute of the International Criminal Court (‘ICC’). But apart from that, they tend to give the prosecution sweeping discretion in the conduct of the preliminary examination. As a consequence, PEs often involve a large degree of uncertainty for those directly concerned, they may extend over a long period of time, or they can easily become a graveyard for reports on or allegations of criminal conduct. Many allegations of core international crimes – typically, but not limited to, international sex crimes  – do not make it beyond preliminary examination.

While legal systems depend on the flexibility afforded by discretionary power vested in lawyers, the sheer expanse of discretion in preliminary examination bolsters the power of the prosecutor vis-á-vis victims, judges, the public and, in international jurisdictions, the States concerned. Public statements made by the prosecutor pursuant to a preliminary examination – or just keeping it open for several years – can cast shadows of incrimination over suspects, Governments and States alike (including non-States Parties). In the case of the ICC, there is almost nothing a suspect or State can do about it, except to prepare for the possible outcome and wait. Many criminal justice systems place such distinct power in the hands of the prosecutor from the moment he or she possesses incriminating information, even when the prosecution service is the weakest link of the system which has often been the case in international criminal justice. While the war crimes trials and appellate proceedings have enjoyed intense media, government and expert attention the last twenty years, preliminary examination has received very little. This deficit is problematic as a weak start often makes crooked and - as we have seen at the ICC - broken war crimes cases which undermine trust among victims, donors and the public. Human rights defenders also depend on sound preliminary examinations for their sources (during the documentation of violations) to agree to sharing materials with criminal justice actors. To pass from documentation to criminal examination, one must cross the bridge of preliminary examination. This is a critical dimension of the relationship between civil society and the rise of criminal justice for core international crimes. 

This research project - funded by the Norwegian Ministry of Foreign Affairs - seeks to contribute to a better understanding of preliminary examinations, their normative frameworks, and aspects requiring improvement, both in international and domestic settings. The project seeks to contribute to improvement, but it pushes no specific agenda of regulatory reform – be it in the form of procedural provisions, prosecution directives, or formal criteria. The project’s open inquiry may well conclude that prosecutorial discretion in preliminary examination should not be further curtailed by binding regulation, but rather that its exercise should be more vigilantly assessed by prosecutors and monitored by civil society. Prosecutorial professionalisation – as other forms of professionalisation, also in the public sector – requires an awareness on the part of prosecutorial leaders of the importance of self-questioning and -improvement. This is a precondition for such professionalisation to take proper hold in the practice of criminal justice teams. It is this awareness and culture of quality control, including the freedom and motivation to challenge the quality of work, which this project seeks to advance. It follows the earlier CILRAP-project on ‘Quality Control in Fact-Finding’, and will be succeeded by a third project on ‘Quality Control in Criminal Investigation’.     

Preliminary examinations have turned into one of the most important activities of the ICC. By September 2016, nine situations are under preliminary examination. Three of them (Afghanistan, Georgia, Iraq/UK) concern permanent members of the United Nations Security Council. The ICC Office of the Prosecutor (‘OTP’) has issued a 2013 Policy Paper on Preliminary Examination and annual preliminary examination reports. Situations such as Palestine or Colombia count among the most complex and challenging areas of inquiry. Human rights fact-finding bodies call on the ICC to consider opening new proceedings. But the ICC faces constraints, in terms of its mandate, jurisdictional limitations, and resources. Attention has shifted from situation to situation. Only limited strategic and long-term thinking has been devoted to broader policy questions, such as the context, rationale and role of PEs, the suitability of the existing legal framework, ICC methodologies, public communication during PEs, the impact of PEs in and across situations, and lessons learned from specific case studies.    

The ‘Quality Control in Preliminary Examination’ project seeks to address these and related challenges from the perspective of multiple disciplines and angles. The project started with a thematic expert meeting in The Hague in September 2015. The second phase of the project takes stock of existing approaches to preliminary or pre-investigation examination, reviews ICC and national policies and practices, identifies lessons from countries where the ICC has engaged in prolonged preliminary examination, and explores how a culture of quality control can be enhanced in preliminary examination.