Politics, Power Dynamics, and the Limits of Existing Self-Regulation and Oversight in ICC Preliminary Examinations

2 Quality Control in Preliminary Examination: Reviewing Impact, Policies and Practices 77- 150 (Morten Bergsmo and Carsten Stahn eds., 2018)

77 Pages Posted: 5 Jun 2017 Last revised: 16 Sep 2018

See all articles by Asaf Lubin

Asaf Lubin

Yale University; Berkman Klein Center for Internet & Society; Yale University - Information Society Project

Date Written: June 1, 2017

Abstract

Should the normative framework that governs the International Criminal Court’s (ICC) oversight concerning Preliminary Examinations (PE) undergo a reform? The Chapter seeks to answer this question in the affirmative, making the claim that both self-regulation by the Office of the Prosecutor (OTP) and quality control by the Pre-Trial Chamber (PTC) currently suffer from significant deficiencies, thus failing to reach the optimum point on the scale between absolute prosecutorial discretion and absolute control. The Chapter relies on the 2015 Palestinian referral in order to demonstrate some of these inadequacies. The Chapter first maps out the legal structures and mechanisms that currently regulate the PE stage. The Chapter then proceeds to explore a number of key areas where the OTP has considerable independence, and concerning which sufficient quality control is critical to ensuring the legitimacy of the PE process, and of the Court itself. This review includes an analysis of the potential for politicization of the Court, the problems faced by the OTP when attempting to articulate generalized prioritization policies and exit strategies, the regulation of evidentiary standards at the PE stage, and the role of transparency in the PE process. The Chapter concludes with four suggestions for potential reform of the control mechanisms over prosecutorial discretion in the PE process: (1) re-phasing of the PE phase and the introduction of a Gantt-based review process; (2) redefinition of the relationship between the OTP and PTC at the PE stage; (3) redrafting of existing OTP policy papers on PEs and Interests of Justice and the adoption of a new policy paper on evidence and evidentiary standards; and (4) introducing a “Committee of Prosecutors” as a new external control mechanism.

The Chapter is part of anthology to be edited by Professors Carsten Stahn and Morten Bergsmo on Quality Control in Preliminary Examination to be published and launched in December 2017.

Keywords: International Criminal Law, International Criminal Court (ICC), Preliminary Examination, Oversight, Palestine, Israel, International Law, Office of the Prosecutor, Pre-Trial Chamber, Registered Vessels of Comoros, Greece and Cambodia

Suggested Citation

Lubin, Asaf, Politics, Power Dynamics, and the Limits of Existing Self-Regulation and Oversight in ICC Preliminary Examinations (June 1, 2017). 2 Quality Control in Preliminary Examination: Reviewing Impact, Policies and Practices 77- 150 (Morten Bergsmo and Carsten Stahn eds., 2018). Available at SSRN: https://ssrn.com/abstract=2978551

Asaf Lubin (Contact Author)

Yale University ( email )

New Haven, CT 06520
United States

Berkman Klein Center for Internet & Society ( email )

Harvard Law School
23 Everett, 2nd Floor
Cambridge, MA 02138
United States

Yale University - Information Society Project ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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