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The International Criminal Court, preliminary examinations, and the Security Council: Kill or cure?
Abstract
In March 2020, the Appeals Chamber of the International Criminal Court (ICC) authorized the Prosecutor to open an investigation into the situation in the Islamic Republic of Afghanistan. This was a significant milestone for the ICC, ending a lengthy and contentious preliminary examination (PE) and opening the possibility of investigation by the ICC of alleged crimes committed by US citizens. By December 2020, four other preliminary examinations were concluded, two of them (Ukraine, UK-Iraq) potentially involving investigation into the conduct of nationals of permanent members of the Security Council (Russia and the UK) and the third (Palestine) involving a close ally of the United States (Israel). While the conclusion of the examinations into the situations in Ukraine, Palestine, and Afghanistan resulted in requests to open full investigations, the outcome in the situation in Iraq-UK was to close the examination with no further steps. This article discusses the situations in UK-Iraq and Ukraine, setting the actions of the ICC Prosecutor and the responses of the P5 members involved in the context of the international and domestic politics of international justice. We argue that, while PEs were and remain highly significant for the future of the Court, they are not the cure to its current malaise.
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Author and article information
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Natasha Kuhrt is Lecturer in War Studies, King's College London natasha.kuhrt@123456kcl.ac.ukNatasha Kuhrt is a Lecturer in the Department of War Studies at King's College London. Natasha is co-convenor of the British International Studies Association Russian & Eurasian Security Working Group.
Rachel Kerr is Professor of War and Society, Department of War Studies, King's College London Rachel.kerr@123456kcl.ac.ukRachel Kerr is Professor of War and Society in the Department of War Studies at King's College London. Rachel co-convenes the War Crimes Research Group and the Visual and Embodied Methodologies Network at King's.
An investigation into alleged crimes in Kenya in the context of post-election violence was opened in 2010. Indictments were issued against high profile accused including President Uhuru Kenyatta and Deputy President William Ruto, as well as other high-ranking politicians. In March 2013, the ICC prosecutor withdrew all charges against one accused, citing issues with recanting witnesses and Kenya's limited cooperation and failure to assist in uncovering crucial evidence. In December 2014, the prosecutor withdrew charges against Kenyatta prior to trial, citing similar challenges. In April 2016, judges concluded there was insufficient evidence to continue the Ruto/Sang trial, which had been running for a year and which was also plagued by witness-tampering.
Several allegations of unlawful killings were upheld against Australian special forces operating in Afghanistan between 2007 and 2013 in the Brereton Report, published in November 2020.
Palestine has been under preliminary examination since 16 January 2015, following a declaration lodged by Palestine under Article 12(3) and subsequently as a result of the State of Palestine becoming a State Party to the ICC on 1 April 2015.
Initially, jurisdiction was for a specified period, 13 November 2013 to 20 February 2014, but was subsequently extended from 20 February 2014, with no end date.