We are pleased to present a new research project on challenges in pre-investigations or ‘preliminary examinations’. Such examinations are required to determine whether there is reasonable basis to proceed with criminal investigation. They afford the prosecution wide discretion – be it in national or international jurisdictions – and often involve a large degree of uncertainty for those directly concerned. The examinations may extend over a long period of time, and easily become a graveyard for reports on criminal conduct. While legal systems depend on the flexibility provided 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. Moreover, human rights defenders 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 investigation, one must cross the bridge of preliminary examination.
This research project – funded by the Norwegian Ministry of Foreign Affairs – aims to contribute to a better understanding of preliminary examinations, both in international and domestic settings. While seeking to contribute to improvement, the project pushes no specific agenda of regulatory reform. Prosecutorial professionalisation requires an awareness on the part of prosecutorial leaders of the importance of self-questioning and self-improvement. It is this awareness and culture of quality control, including the freedom and motivation to challenge vigorously the quality of work, which this project seeks to advance. It follows the earlier CILRAP-project on ‘Quality Control in Fact-Finding’.
Preliminary examinations have turned into one of the most important activities of the ICC, with nine situations being under pre-investigation. The ICC Office of the Prosecutor has issued a 2013 Policy Paper on Preliminary Examination and annual preliminary examination reports. Only limited strategic and long-term thinking has been devoted to broader policy questions, such as the context, rationale and role of preliminary examinations, the suitability of the existing legal framework, ICC methodologies, public communication during such examinations, their impact in and across situations, and lessons learned from specific case studies. This new project is designed to take stock of existing approaches to preliminary examination, review ICC and national policies and practices, identify lessons from countries where the ICC has engaged in prolonged preliminary examination, and explore how a culture of quality control can be enhanced in preliminary examination.
Papers will be discussed at a conference in The Hague on 13-14 June 2017, and considered for publication in an open access anthology to be edited by the present writers for publication late 2017. Interested speakers should send a draft title and abstract of their proposal (500 words), written in English, together with a curriculum vitae to email@example.com by 31 December 2016. Submissions should be related to one or more of the themes detailed in the concept document, which contains further information. We encourage submissions from authors of all backgrounds, in particular from India and China.
Visiting Professor, Peking University Law School
Professor, Leiden University Law School