The International Criminal Court (ICC), the world’s first and only permanent body set up to investigate and prosecute the international crimes of genocide, crimes against humanity, war crimes and aggression, is currently conducting investigations in 14 situations, prosecuting 30 cases, and considering whether to open formal investigations in another 8 situations. Although there were doubts about its viability when the Rome Statute establishing the Court came into force in July 2002, it is now clearly an indispensable part of the architecture of international justice. Indeed, “[t]housands of victims and survivors around the world see in the ICC their last resort for justice.” Yet, the Court faces a number of serious challenges. While 123 states are party to the Rome Statute, major powers such as the U.S., Russia, China and India are not among them. Moreover, the Court faces limited financial and human resources and a number of institutional issues, many of them raised in an Independent Expert Review of the Court released in September of last year. Since the Rome Statute establishing the ICC came into force 19 years ago, only five persons have been convicted of the ICC’s core crimes (four of them final convictions and one still subject to appeal). At the same time, the Office of the Prosecutor (OTP) has opened (or indicated an intention to seek authorization to open) investigations into several situations – namely Afghanistan, Palestine and Ukraine – that implicate conduct committed by nationals of states not party to the Rome Statute – namely the U.S., Israel and Russia – triggering unprecedented hostility toward the Court, which had already been the subject of waning global support. It is against this backdrop that about a month ago the Court’s third prosecutor, Karim Kahn, appointed in February for a nine-year term, assumed his post.

The OTP has a responsibility to select which situations to investigate, to investigate those situations, and to select, investigate and prosecute individual cases arising out of those investigations (at arts. 13, 15, 53, 54). It is, as others have put it, “the engine of the court.” How the next prosecutor navigates the challenges and opportunities he faces – and what kind of leadership he offers – will, therefore, have a considerable impact on how the Court functions and how it is perceived. Others – both in discussion forums and in the context of the more formal Independent Expert Review – have raised a number of challenges and offered important recommendations that the new prosecutor would do well to take into account, particularly regarding the OTP’s working environment and culture (see, for instance, The Next ICC Prosecutor Must Embody Integrity in the #MeToo Era and ICC Prosecutor Symposium: The Prosecutor’s Commitment to Ensuring Gender Equality). In the face of limited successes and institutional inefficiencies, however, another critical aspect of the new prosecutor’s job will be to (re)inspire confidence in the Court, both among states as well as victims and survivors. This post will focus on the challenges and opportunities for Mr. Kahn raised by a number of decisions and policy papers issued by the outgoing prosecutor, Fatou Bensouda, in her very last week that might well have an impact on whether he is able to engender a renewed sense of engagement with and support for the Court.

Preliminary Examinations: Benchmarking Framework for the Situation in Colombia

On June 15, 2021, Ms. Bensouda issued an invitation to stakeholders to consult on the development of a benchmarking framework with respect to the Office’s ongoing preliminary examination into the situation in Colombia. A preliminary examination is the process by which the OTP determines whether a situation meets the legal criteria established by the article 53(1) of the Rome Statute to warrant an investigation. Much has been written about preliminary examinations and the potential of those examinations to catalyze prosecutions at the domestic level (see, e.g., Pressure Point: The ICC’s Impact on National Justice: Lessons from Colombia, Georgia, Guinea, and the United Kingdom). But the situation in Colombia is the Court’s longest running preliminary examination, having been initiated by the OTP 17 years ago. While, by some accounts, the Court’s engagement has kept accountability for international crimes on the agenda and helped to counter some obstacles to prosecution as Colombia moved through its peace process, critics have pointed out that its influence has been limited. At the same time, prolonged examinations may impair the collection of evidence, frustrate victims as they wait for justice for the crimes perpetrated against them years – if not decades – earlier, and ultimately reduce the willingness of states to cooperate with the OTP (see Independent Expert Review, at paras. 706, 711-71). As one commentator put it, “it seems troublesome to potential targets of prosecution, affected communities in general, as well as the victims and survivors of international crimes, to let preliminary examinations drag on indefinitely.”

Ms. Bensouda’s call for a consultation on benchmarks that would help it reach a final determination in Colombia is, therefore, a welcome development. Not only is it consistent with the recommendation of the Independent Expert Review (Recommendations 255), but it may free up much-needed resources for the OTP to focus on ongoing investigations and prosecution of cases. As one commentator has noted, “The ICC needs cases, meaning successful cases. More of them. Without more successful cases, none of the hopes for the ICC — deterrent, expressivist, symbolic — will be achieved.” The closing of long-term, resource-intensive preliminary examinations may therefore allow the OTP to focus more of its resources on improving its investigative and other strategies necessary to improve its prosecution record (see, e.g. What can and should the next Chief Prosecutor do to improve the ICC’s investigation techniques?), engendering renewed confidence and support in the Court.

Of course, the devil is in the details. While Ms. Bensouda proposed a set of factors that may assist the OTP in reaching a final determination in Colombia (ICC-OTP, Situation in Colombia: Benchmarking Consultation, at paras. 35-42), it will be up to the Mr. Kahn to see this process through in a way that addresses the negative effects of indefinite examinations without triggering new impediments to accountability. As commentators have noted, implementing benchmarks may, for instance, “lead to less cooperation as states under scrutiny would choose to ‘wait out the clock’” or inhibit the ability of the prosecution to strategically time the opening of its investigations. Thus, leading these consultations and implementing a preliminary examination closure plan will be one of the most daunting challenges facing the new prosecutor...

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