Preliminary examinations are one of the most important, yet crucially understudied areas of international criminal justice. The Grotius Centre and the Centre for International Law Research are seeking submissions for the second phase of the “Quality Control in Preliminary Examination” project which seeks to identify approaches to preliminary or pre-investigation examination, review ICC and national policies and practices, and provide lessons from countries where the ICC has engaged. Papers will be discussed in a project conference to be held in The Hague on 13-14 June 2017, and considered for publication in an anthology to be edited by Professors Carsten Stahn and Morten Bergsmo.
Please find the call for papers here.
The themes include, but are not limited to, the following clusters with sub-topics:
- Context of Preliminary Examinations
- Global context: What is the space of PEs in the global accountability architecture? How do they relate to other human rights or accountability mechanisms?
- Goals: What is the function of PEs? Should they be related to prevention, deterrence, or positive complementarity?
- Operation: What factors have prompted the opening of PEs or impeded their initiation?
- Leverage: What leverage do PEs carry? How is leverage created? Is there any expressivist value of the opening of a PE? How is it manifested? In the case of the ICC, is it more effective when it is in the shadow rather than in the spotlight?
- ICC mechanisms: To what extent is the ICC equipped to monitor ongoing violations that may amount to core international crimes? Should it provide advice or guidance on domestic policies or specific peace and justice dilemmas?
- Risks: What are the risks of PEs? To what extent do they make the ICC or other criminal jurisdictions vulnerable to criticism or manipulation?
- Infrastructure and funding: Are the existing organizational and institutional resources for preliminary examination of core international crimes adequate? Is the funding sufficient to meet goals and expectations?
- Legal Foundations of Preliminary Examinations
- Regulation: Are existing legal frameworks of preliminary examination appropriate? Do PEs require more regulation, or is the partial absence of regulation an asset?
- Space of discretion: What aspects of PEs come within the ambit of prosecutorial discretion and operational policy? What aspects are (or should be) open to legal review?
- On-site access and link to investigations: Under what circumstances it is feasible to seek on-site access for purposes of information-gathering? How early should a case hypothesis be formulated?
- Prioritisation: Should there be criteria for the prioritisation of preliminary examinations, and, if so, to what extent is gravity helpful as a criterion?
- Time factor: Should there be time limits for PEs, or at least an ideal timeline? What are the pro and contra arguments?
- “Exit strategies”: How long should the preliminary examination of a situation remain open? What are appropriate “exit strategies” for PEs? Should there be any benchmarks, and if so, which? How should the closing of PEs be formalized?
- Prosecution policies: Are existing methodologies used in preliminary examination adequate? Is it advisable to adopt a phase-based approach?
- Are PEs subjected to the same quality control mechanisms as investigations (including internal peer review among prosecutors and investigators)? What should be the role of prosecutors in PE decision-making and review of information on alleged core international crimes? Should there be several levels of review involving experienced criminal justice lawyers before important PE decisions are made?
- Sources: On what sources should PEs rely? Does so-called “big data” have any relevance for PEs?
- Transparency vs. confidentiality: To what extent is publicity of PEs a virtue? In what circumstances is confidentiality warranted? Can the ICC-OTP use a PE in public discourse about an ongoing investigation or prosecution?
- Relationship to other fact-finders: How can the relationship with non-criminal justice fact-finders be improved? What lessons can be learned from other fact finding or human rights monitoring bodies?
- Case Studies or Situation-Related Analysis
- Case studies: What lessons can be learned from specific case studies? What effects did PEs in international criminal jurisdictions produce in specific contexts (that is, in situation or non-situation countries)? Is there evidence that PEs contributed to goals, such as deterrence, prevention or complementarity?
- Impact: To what extent is the impact of PEs related to the threat of investigations or media exposure, or other intermediate factors? How can impact be traced? What unintended consequences did the ICC produce? Have ICC PEs had detrimental effects, for example because of their duration or perceived political motivation?
- Interaction with situation countries: Have ICC PEs affected domestic criminal policies, or executive, legislative or judicial practices in specific countries? Did they strengthen or weaken accountability initiatives at the domestic level? What about the effect on respect for the ICC in that country?
- Societal effects: What impact did PEs have on non-state actors or local communities? How did they affect societal discourse on peace and justice? Did they empower or disempower specific constituencies?
- Narratives and perceptions: What narratives are used in existing PEs? How are they construed? How do they align with local realities? How are they perceived by different entities: international institutions, affected states, NGOs, local communities?
- Consequences of inaction: What are the implications if the ICC does not open a PE or an investigation? How can it be avoided that inaction is perceived as an implicit toleration of atrocity, or as an indication of lesser ‘gravity’?
 See the critical views of, for example, CHAN James: ‘Judicial Oversight over Article 12(3) of the ICC Statute’, FICHL Policy Brief Series No. 11 (2013), Torkel Opsahl Academic EPublisher, Oslo, 2013 (http://www.legal-tools.org/doc/bc46c4/), and XIAO Jingren and ZHANG Xin: ‘A Realist Perspective on China and the International Criminal Court’, FICHL Policy Brief Series No. 13 (2013), Torkel Opsahl Academic EPublisher, Beijing, 2013 (http://www.legal-tools.org/doc/9ff2b7/).
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