The International Criminal Court’s Office of the Prosecutor has opened a preliminary examination into the situation in Ukraine.  As we earlier noted, Ukraine on April 17, 2014, submitted a Declaration under Article 12(3) of the Statute accepting the ICC’s jurisdiction over alleged crimes committed between 21 November 2013 and 22 February 2014.  These dates capture the period of time in which then-Ukrainian President Viktor Yanukovych’s government used force to repress protests over his decision to walk away from integration agreements with the European Union, but would not cover recent events involving the Russian intervention in Crimea, as we’ve noted.  Although it signed the ICC Statute in 2000, Ukraine has not yet ratified the treaty, as lamented by the President of the Assembly of States Parties, Tiina Intelmann of Estonia.

The Article 12(3) mechanism allows states to accept the jurisdiction of the Court on an ad hoc basis without having to fully ratify the treaty.  Ratification of the statute would normally accord only prospective jurisdiction; with Article 12(3), states can “back date” an acceptance of jurisdiction. (There has been some speculation that a State Party could also back-date the Court’s jurisdiction by way of an Article 12(3) declaration to events that occurred pre-ratification, although this has never been tested.) It is important to note, however, that an Article 12(3) Declaration is not the equivalent of a referral of a situation to the Court.  Before a full investigation can commence and before potential indictments can issue, the situation in Ukraine would need to formally come before the Court via one of three trigger mechanisms: a Security Council referral (unlikely), a state party referral (including by way of a Ukrainian self-referral), or via proprio motu action by the Prosecutor, which requires the approval of a Pre-Trial Chamber.

In the face of information suggesting that crimes within the jurisdiction of the Court have been committed, the Prosecutor, as a matter of course, opens what is called a preliminary examination (Article 53(1)). Depending on the outcome of the preliminary examination, the Prosecutor may (1) decline to initiate an investigation, (2) continue to assess relevant national proceedings, (3) continue to collect information, or (4) initiate an investigation, subject to judicial review in the event of a situation triggered by the Prosecutor’s proprio motu powers.  In theory, the Prosecutor must initiate a full-scale investigation, with an eye toward identifying responsible individuals, unless she believes there is no reasonable basis to proceed based upon factors set forth in Article 53(1)(a) – (c):  jurisdiction, admissibility (which encompasses a consideration of complementarity and gravity), and the interests of justice. Thus, the situation in Ukraine has a very preliminary status before the ICC.

It should be emphasized that a preliminary examination is undertaken on the basis of very limited information that is publicly available, provided by outside parties, or located at the seat of the Court; the Prosecutor does not undertake anything in the way of a full-scale evidentiary investigation.  Although she does not enjoy full investigative powers at this stage, she can seek additional information from states, U.N. organs, NGOs, and other parties concerned.  Although there are three main considerations within a preliminary examination, technically, a preliminary examination involves four phases as set forth below.

Phase 1: Filter.  Phase 1 involves an initial assessment of information received by the Office, whether from States, individuals, or organizations.  To date, the Prosecutor has received over 10,000 “communications” concerning crimes allegedly within the jurisdiction of the Court (Article 15).  This information is analyzed and placed into one of four categories:  (1) matters that are manifestly outside the jurisdiction of the Court; (2) matters that are already subject to a preliminary examination; (3) matters already subject to a formal investigation or prosecution; or (4) matters that do not fit any of the other three categories and thus require further analysis.  This last category of information may result in the initiation of a new preliminary examination and thus eventually new cases to be brought before the Court.  Phase 1 is essentially a filter to eliminate potential situations that are manifestly outside the jurisdiction of the Court.

Phase 2: Jurisdiction (Articles 11-13). There are multiple types of jurisdiction that must be evaluated by the Prosecutor during this phase of the preliminary examination:  temporal; subject matter; and nationality/territorial.   The Prosecutor must determine that there is a reasonable basis to believe that all three of these jurisdictional requirements have been met to proceed to the investigations phase.

Temporal Jurisdiction.  The ICC only has jurisdiction for acts that were committed after the Rome Treaty came into effect on 1 July 2002 (Article 11).  Temporal jurisdiction may also depend on: when a particular State ratified the Rome Treaty; in the case of a Security Council referral, any effective date included in the referral Resolution; and in the case of an ad hoc declaration by a non-state party accepting jurisdiction under Article 12(3), the date specified in that declaration.

Subject Matter Jurisdiction.  The Prosecutor must establish a reasonable basis for believing that one of the four crimes within the jurisdiction of the Court has been committed.  To do so, the Prosecutor must consider the chapeau elements (e.g., the existence of an armed conflict; whether an attack against a civilian population was widespread or systematic), the nexus between the specific criminal acts alleged and these contextual elements, the de facto or de jure role of alleged perpetrators, and any required mental element (e.g., specific or general intent; the intent to destroy in whole or in part a protected class of people; knowledge of the widespread or systematic attack against a civilian population).  A preliminary examination into the situation in Venezuela was closed in 2006 because former Chief Prosecutor Luis Moreno Ocampo determined that the acts alleged did not rise to the level of crimes against humanity.

Preconditions to Jurisdiction.  Absent a Security Council referral, the Prosecutor can only consider crimes that have been committed on the territory of a state party or by the nationals of a state party (Article 12). As indicated above, a non-party state can also lodge an ad hoc declaration with the Court indicating that it will accept the Court’s jurisdiction in the event of a referral.

Phase 3: Admissibility (Article 17). Assuming jurisdiction exists, the Prosecutor then considers whether any cases that the situation might generate would be admissible.  Admissibility is an inquiry that is separate and apart from the existence of jurisdiction.  Admissibility involves two distinct inquiries: complementarity and gravity.

Complementarity.  For complementarity, the Prosecutor must assess whether genuine investigations or prosecutions have been undertaken by a State with jurisdiction over the matter. As part of a preliminary examination, the Prosecutor will consider whether there are adequate domestic proceedings involving the types of crimes and defendants that might come before the Court (Article 53). If there are, then the Prosecutor will not move forward with an investigation but will continue to monitor the situation. This is the Office of the Prosecutor’s posture with respect to the situation in Colombia, which has been the subject of a preliminary examination since 2004.  The Prosecutor has determined that there is a reasonable basis to believe that war crimes and crimes against humanity have been committed by paramilitary groups and state forces.  So far, however, the OTP has declined to go forward with an investigation because it has determined that there are genuine national proceedings involving these alleged crimes, which mitigate against the ICC asserting its jurisdiction.

Gravity. The second component of admissibility is gravity.  At the preliminary examination phase, the situational gravity is at issue, which includes both quantitative and qualitative elements, including the scale, nature, manner of commission of the crimes, and their impact. To assess the scale of the crimes, the Prosecutor will look at:

the number of direct and indirect victims, the extent of the damage caused by the crimes, in particular the bodily or psychological harm caused to the victims and their families, or their geographical or temporal spread (high intensity of the crimes over a brief period or low intensity of crimes over an extended period).

The nature of the crimes refers to the specific elements of each offence (e.g. killings, torture, rapes).  With respect to the manner of commission of the crimes, the Prosecutor looks to the

means employed to execute the crime, the degree of participation and intent of the perpetrator (if discernible at this stage), the extent to which the crimes were systematic or result from a plan or organised policy or otherwise resulted from the abuse of power or official capacity, and elements of particular cruelty, including the vulnerability of the victims, any motives involving discrimination, or the use of rape and sexual violence as a means of destroying groups.

Finally, to assess the impact of the crimes, the Prosecutor will look to “the sufferings endured by the victims and their increased vulnerability; the terror subsequently instilled, or the social, economic and environmental damage inflicted on the affected communities.”

A preliminary examination into the situation in Iraq was closed in part on the basis of a finding that while crimes within the jurisdiction of the Court may have been committed by ICC State Parties, the crimes alleged did not satisfy the element of gravity.  Iraq is not a State Party to the ICC Statute and has not submitted an Article 12(3) ad hoc declaration accepting the jurisdiction of the Court; however, the United Kingdom, an ICC Party, had troops stationed in Iraq as part of Operation Iraqi Freedom.  The Prosecutor received a number of communications containing allegations that British troops had committed crimes within the jurisdiction of the Court or were accessories to crimes committed by nationals of non-party states.  Moreno Ocampo determined that the available information did not indicate the commission of intentional attacks on civilians or that excessive force in relation to the military advantage to be gained was utilized.  With respect to alleged custodial abuses, by contrast, the Prosecutor concluded that there was a reasonable basis to believe that crimes within the jurisdiction of the Court had been committed (namely, the wilful killing and inhuman treatment of 4 – 12 individuals).  He determined, however, the required gravity threshold was not met, particularly as compared with other situations before the Court.

Phase 4: Interests of Justice (Article 53(1)(c)). While the Prosecutor must show that there are reasonable grounds for believing that the requirements of complementarity and gravity are met, the “interests of justice” element is a countervailing consideration.  They are considered only once the requirements of jurisdiction and admissibility are met.  So far, no situation subject to a preliminary examination has been fully analyzed with respect to this element. The Prosecutor has indicated that she will rarely decide not to proceed with an investigation based upon an evaluation of the interests of justice:

In light of the mandate of the Office and the object and purpose of the Statute, there is a strong presumption that investigations and prosecutions will be in the interests of justice, and therefore a decision not to proceed on the grounds of the interests of justice would be highly exceptional.

This is the third instance in which an Article 12(3) declaration has been lodged with the Court. The cases involving crimes committed in Côte d’Ivoire originally came before the Court as a result of an ad hoc declaration by the state (submitted in 2003 and reaffirmed in 2010) followed by a proprio motu investigation by the Prosecutor. Côte d’Ivoire finally ratified the Rome Statute in 2013. The only other Article 12(3) declaration received by the Court to date came from the Palestinian National Authority (PNA) in 2009 with respect to acts committed on its territory since July 1, 2002. The then Prosecutor, Luis Moreno Ocampo, determined that it was not for the Prosecutor to determine whether the PNA constituted a state for the purpose of the Rome Statute, and so the preliminary examination into the situation was closed in April 2012.  (More on the Palestinian situation and the ICC here).

Other situation countries that are the subject of preliminary examinations are:  Afghanistan, Central African Republic, Colombia, Comoros/Greece/Cambodia, Georgia, Guinea, Honduras, Nigeria, and Republic of Korea.