Fatou Bensouda, the ICC’s Prosecutor, announced in her statement that a preliminary examination has been initiated into Burundi on-going crisis, allegedly involving more than 430 persons killed, at least 3,400 people arrested, and over 230,000 Burundians forced to seek refuge. As reported in an earlier post, the Prosecutor has been watching the ongoing situation in Burundi since early 2015, commenting on the then-upcoming election, fulfilling the OTP’s early warning function and preemptively calling for peace and cease of violence. It appears however, that her prevention efforts within Burundi, a State Party to the Rome Statute, unfortunately fell short because about a year later, she is initiating a preliminary examination.
Preliminary examination may be initiated by the Prosecutor, referral from a State Party or Security Council, or a 12(3) declaration by a State that is not a Party to the Rome Statute. In this case, the Prosecutor exercised its vested authority to begin examination. The purpose of such examination is to review and assess information available so far to determine whether a reasonable basis to proceed with investigation exists. Article 53(1) of Rome Statute requires Prosecutor to consider issues of jurisdiction (often focusing on the Court’s subject matter jurisdiction), admissibility (comprising of both complementarity and gravity determination often focusing on the domestic prosecutorial and investigative efforts) and overall interest of justice.
Not every preliminary examination leads to authorization to investigate. In situations of Honduras, Republic of Korea, and the Vessels of Comoros, the Court found no reasonable basis to proceed with investigation, as required by art. 53(1), and concluded its preliminary examinations without prejudice, leaving the possibility to re-open examination available should additional information and evidence surface. On the other hand, in situations of Libya, Ivory Coast, Mali, Georgia, and CAR II, for example, the Court moved forward, finding reasonable basis to proceed and securing pre-trial chamber’s authorization to open investigation in these situations.
The ICC has seven open preliminary examinations at this time, making Burundi the eighth one. Three situations, Palestine, Ukraine and Iraq, are currently in Phase 2 – having the Court consider subject-matter jurisdiction. Four situations, Afghanistan, Colombia, Guinea, and Nigeria, have moved to Phase 3 – having the Court consider issues of admissibility. The Court issues reports on its preliminary examination conclusions each year sharing its findings in each situation and ensuring so the much needed transparency.
- OTP, Policy Paper on Preliminary Examinations (Nov. 2013).