Quality Control in Preliminary Examination: Reviewing Impact, Policies and Practices

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TOAEP publishes two-volume publication based on international conference and project

The Torkal Opsahl Academic EPublisher (TOEAP) has published a two-volume anthology, based in large part on papers presented at the conference “Quality Control in Preliminary Examination” in the Peace Palace in The Hague on 13–14 June 2017.

Edited by Morten Bergsmo (CILRAP Director) and Carsten Stahn (Professor of International Criminal Law and Global Justice at Leiden Law School), the two volumes seek to contribute to a better understanding of preliminary examinations, their normative frameworks, and aspects requiring improvement, both in international and domestic settings. In their introduction, the editors describe;

the sheer expanse of discretion in preliminary examination bolsters the power of the prosecutor vis-à-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).

The publication is available online and is free of charge [Volume 1] [Volume 2]. Videos of several conference presentations are also available in CILRAP Film.

Part 1: The Practice of Preliminary Examination: Realities and Constraints

Authors describe and evaluate the practice and constraints of preliminary examination in seven jurisdictions, including Norway, Germany, US Military, India, the ICC, ICTY and ECCC:

  • Andrew T. Cayley: Constraints and Quality Control in Preliminary Examination: Critical Lessons Learned from the ICTY, the ICC, the ECCC and the United Kingdom [watch]
  • Runar Torgersen: The Concern for Quality Control and Norwegian Preliminary Examination Practice [watch]
  • Franklin D. Rosenblatt: Preliminary Examination in the United States Military: Quality Control and Reform
  • Abraham Joseph: Pre-Investigation and Accountability in India: Legal and Policy Roadblocks [watch]
  • Matthias Neuner: German Preliminary Examinations of International Crimes [watch]
  • Matilde E. Gawronski: The Legalistic Function of Preliminary Examinations: Quality Control as a Two-Way Street [watch]
  • Amitis Khojasteh: The Pre-Preliminary Examination Stage: Theory and Practice of the OTP’s Phase 1 Activities [watch]

Part 2: Case Studies or Situation Analysis

Nine case studies of situation analyses of ICC Preliminary Examinations including Colombia, Georgia, Kenya, Palestine, Ukraine, the UK/Iraq and Comoros/Gaza flotilla:

  • Marina Aksenova: The ICC Involvement in Colombia: Walking the Fine Line between Peace and Justice [watch]
  • Christian M. De Vos: ‘Magical Legalism’ and the International Criminal Court: A Case Study of the Kenyan Preliminary Examination [watch]
  • Benson Chinedu Olugbuo: Challenges in the Relationship between the ICC and African States: The Role of Preliminary Examinations under the First ICC Prosecutor [watch]
  • Iryna Marchuk: Dealing with the Ongoing Conflict at the Heart of Europe: On the ICC Prosecutor’s Difficult Choices and Challenges in the Preliminary Examination into the Situation of Ukraine
  • Thomas Obel Hansen: Accountability for British War Crimes in Iraq? Examining the Nexus between International and National Justice Responses [watch]
  • Rachel Kerr: The UK in Iraq and the ICC: Judicial Intervention, Positive Complementarity and the Politics of International Criminal Justice [watch]
  • Sharon Weill: The Situation of Palestine in Wonderland: An Investigation into the ICC’s Impact in Israel [watch]
  • Nino Tsereteli: Quality Control in the Preliminary Examination of the Georgia Situation [watch]
  • Ali Emrah Bozbayindir: The Venture of the Comoros Referral at the Preliminary Examination Stage

Part 3: The Normative Framework of Preliminary Examinations

Six contributions explore the normative framework of preliminary examinations, including:

  • Alexander Heinze and Shannon Fyfe: Prosecutorial Ethics and Preliminary Examinations at the ICC [watch]
  • Asaf Lubin: Politics, Power Dynamics, and the Limits of Existing Self-Regulation and Oversight in ICC Preliminary Examinations [watch]
  • Jens Iverson: Disarming the Trap: Evaluating Prosecutorial Discretion in Preliminary Examinations beyond the False Dichotomy of Politics and Law [watch]
  • Christopher B. Mahony: Make the ICC Relevant: Aiding, Abetting, and Accessorizing as Aggravating Factors in Preliminary Examination [watch]
  • Matthew E. Cross: The Standard of Proof in Preliminary Examinations [watch]
  • Gregory S. Gordon: Reconceptualizing the Birth of the International Criminal Case: Creating an Office of the Examining Magistrate [watch]

Part 4: Transparency, Co-operation and Participation in Preliminary Examination

Seven articles Address specific themes of importance to ICC preliminary examinations

  • Ana Christina Rodríguez Pineda: Deterrence or Withdrawals? Consequences of Publicizing Preliminary Examination Activities [watch]
  • Vladimir Tochilovsky: Objectivity of the ICC Preliminary Examinations [watch]
  • Mutoy Mubiala: The ICC’s Interplay with UN Fact-Finding Commissions in Preliminary Examinations
  • LING Yan: Non-States Parties and the Preliminary Examination of Article 12(3) Declarations
  • Dov Jacobs and Jennifer Naouri: Making Sense of the Invisible: The Role of the ‘Accused’ during Preliminary Examinations [watch]
  • Andreas Schüller and Chantal Meloni: Quality Control in the Preliminary Examination of Civil Society Submissions [watch]
  • Sarah Williams: Civil Society Participation in Preliminary Examinations [watch]

Part 5: Thematicity in Preliminary Examination  

Five papers Address other themes central to the practice of preliminary examinations yet fell outside of the scope of the 2017 conference, including:

  • Usha Tandon, Pratibha Tandon and Shreeyash U. Lalit: Quality Control in Preliminary Examination of Rape and Other Forms of Sexual Violence in International Criminal Law: A Feminist Analysis
  • Cynthia Chamberlain: Preliminary Examinations and Children: Beyond Child Recruitment Cases and Towards a Children’s Rights Approach [watch]
  • Mark Kersten: Casting a Larger Shadow: Premeditated Madness, the International Criminal Court, and Preliminary Examinations
  • Alexa Koenig, Felim McMahon, Nikita Mehandru and Shikha Silliman Bhattacharjee: Open Source Fact-Finding in Preliminary Examinations [watch]
  • Elizabeth M. Evenson: ICC Preliminary Examinations and National Justice: Opportunities and Challenges for Catalysing Domestic Prosecutions [watch]

Related publications

Volume 1: http://www.toaep.org/ps-pdf/32-bergsmo-stahn
Volume 2: http://www.toaep.org/ps-pdf/33-bergsmo-stahn
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