Document Type

Article

Publication Date

7-2018

Publication Title

Journal of International Criminal Justice

Volume

16

Issue

3

First Page

593

Last Page

621

DOI

10.1093/jicj/mqy055

Abstract

In the emerging literature on preliminary examinations, most scholars have focussed on issues that arise after a preliminary examination has been opened. Yet, there has been little analysis of the International Criminal Court (ICC) Prosecutor’s decision to open a preliminary examination in the first place. Taking this gap in the literature as our starting point, and flagging an emerging debate in the ICC as to whether the ICC Statute envisages a ‘pre-preliminary examination’ stage at all, this article examines the law and policy which governs the opening of an ICC preliminary examination and makes the case for further critical discussion about how actions by the Prosecutor and the Court at this early stage of proceedings might affect perceptions of the legitimacy of the ICC. We argue that the Prosecutor’s power to open a preliminary examination can involve complex legal questions, have significant political consequences, and affect how independent the Court is, and is seen to be. As an initial contribution to what we hope will be a broader conversation on this topic, we suggest that greater transparency about the Prosecutor’s decision-making at the ‘pre-preliminary examination’ stage, and greater consistency in the Office of the Prosecutor (OTP)’s treatment of different situations, would enhance the legitimacy of the Court, so long as the OTP continues to protect the safety and security of those who send information on alleged crimes.

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