Challenges of the Prosecutor’s Powers in the Preliminary Examination Phase of the International Criminal Court

How to cite this article / Come citare questo articolo

Soleimani, M., Alizadeh, S. (2026). Challenges of the Prosecutor’s Powers in the Preliminary Examination Phase of the International Criminal Court. Aequitas Magazine, 3, 7–13.
https://doi.org/10.5281/zenodo.18909443

---

ABSTRACT (EN) The Preliminary Examination (PE) phase of the International Criminal Court (ICC), conducted by the Office of the Prosecutor (OTP), represents a crucial stage in the international criminal justice process, as it determines whether a formal investigation should be initiated under the Rome Statute. During this phase, the Prosecutor must establish a “reasonable basis” to proceed by assessing jurisdiction, admissibility, and the interests of justice. Despite its central role, the exercise of prosecutorial authority in the preliminary examination phase is affected by significant legal, judicial, political, and operational constraints. Legal challenges arise from interpretative ambiguities concerning the “interests of justice” criterion and from the lack of a clear regulatory framework governing the screening of communications during the early stages of examination. Judicial challenges relate to the system of oversight exercised by the Pre-Trial Chamber, particularly illustrated in the Afghanistan situation. By adopting a descriptive-analytical approach and examining key ICC situations, including Afghanistan, Palestine, and Venezuela, this article identifies the structural tensions affecting prosecutorial discretion and proposes reform-oriented solutions aimed at strengthening transparency, efficiency, and positive complementarity within the ICC system.

ABSTRACT (IT) La fase di Preliminary Examination (PE) della Corte Penale Internazionale (ICC), condotta dall’Office of the Prosecutor (OTP), costituisce uno snodo decisivo nel funzionamento della giustizia penale internazionale, poiché determina se sussistano i presupposti per l’avvio di un’indagine formale ai sensi dello Statuto di Roma. In questa fase il Prosecutor deve verificare l’esistenza di una “reasonable basis” procedendo alla valutazione della giurisdizione, dell’ammissibilità e degli interests of justice. Nonostante la sua centralità, l’esercizio dei poteri del Prosecutor nella fase preliminare è condizionato da rilevanti criticità di natura giuridica, giudiziaria, politica e operativa. Le principali difficoltà interpretative riguardano la portata del criterio degli interests of justice e l’assenza di una disciplina esplicita relativa alla selezione delle comunicazioni nella fase iniziale di esame. Ulteriori problematiche emergono dal sistema di controllo esercitato dalla Pre-Trial Chamber, come evidenziato nella situazione relativa all’Afghanistan. Attraverso un approccio descrittivo-analitico e l’esame di alcune situazioni emblematiche della Corte, tra cui Afghanistan, Palestina e Venezuela, l’articolo individua le tensioni strutturali che incidono sulla discrezionalità del Prosecutor e propone possibili soluzioni riformatrici volte a rafforzare trasparenza, efficienza e positive complementarity nel sistema della Corte.

---

SUMMARY: 1. Introduction – 2. Legal Framework of the Prosecutor’s Powers and Judicial Oversight – 3. The Pre-Preliminary Examination Phase and Screening Ambiguities – 4. Substantive Legal Challenges: Admissibility and Interests of Justice – 5. Challenges in Interpreting Complementarity – 6. Judicial Oversight of the “Interests of Justice” (IoJ) – 7. Political and Operational Challenges: pressure from Powerful States – 8. Budgetary Constraints and the “Stop-Go” Approach – 9. Reform Strategies and New Directions – 10. Conclusion and Recommendations.

---

1. Introduction

The International Criminal Court, as a permanent judicial institution, is tasked with prosecuting the most heinous international crimes. However, there are limits to the Court’s ability to address all crimes within its jurisdiction. The process of case selection and the decision to launch formal investigations occur during the Preliminary Examination (PE) phase. This stage, executed by the Office of the Prosecutor (OTP), can be initiated via Article 15 of the Rome Statute (proprio motu) or through referrals by States or the UN Security Council.

The Prosecutor’s role in this phase, starting with the evaluation of the seriousness of information, is crucial. The Prosecutor must conclude there is a reasonable basis for investigation by considering jurisdiction, admissibility, and the interests of justice. Given geopolitical sensitivities, resource shortages, and the ambiguous legal nature of certain criteria, the Prosecutor’s powers in this stage have always faced serious challenges. Understanding these challenges is essential not only for ensuring the efficiency of the Court, but also for preserving the legitimacy and effectiveness of international criminal justice.

In order to assess the practical and institutional challenges affecting the Prosecutor’s action during the preliminary examination phase, it is necessary to begin with an analysis of the legal framework that governs the initiation and supervision of such proceedings under the Rome Statute.

2. Legal Framework of the Prosecutor’s Powers and Judicial Oversight

The legal framework governing the Prosecutor’s powers during the preliminary examination phase is primarily established by the Rome Statute and related procedural provisions. Within this framework, the Office of the Prosecutor exercises significant discretion in assessing information on alleged crimes and determining whether the statutory criteria for opening an investigation are satisfied. At the same time, the exercise of these powers is subject to a system of judicial oversight designed to ensure accountability and safeguard the rights of both suspects and victims.

2.1. Legal Bases for Initiating Preliminary Examinations

The Prosecutor’s authority to initiate a PE stems from three distinct legal paths:

1. State Party Referral: Under Article 14 of the Rome Statute.
2. UN Security Council Referral: Under Article 13(b).
3. Proprio Motu: Initiation at the Prosecutor’s own discretion based on received information under Article 15.

In the first two cases (referrals), the Rome Statute imposes a duty on the Prosecutor to investigate unless there is no “reasonable basis”. Judicial oversight by the Pre-Trial Chamber (PTC) is relatively limited here, focusing mainly on decisions not to proceed.

2.2 Judicial Oversight by the Pre-Trial Chamber

Although the Rome Statute confers significant discretion upon the Prosecutor in initiating preliminary examinations, the exercise of such authority is subject to a system of judicial oversight exercised by the Pre-Trial Chamber.

In particular, when acting proprio motu under Article 15 of the Rome Statute, the Prosecutor must request authorization from the Pre-Trial Chamber before opening a formal investigation.

This requirement introduces a stricter form of judicial control compared to situations initiated through State or Security Council referrals. While intended to safeguard the Court from politicization, the practice of the Court – particularly in the Afghanistan situation – has demonstrated that such oversight may, in certain circumstances, operate as a procedural filter capable of delaying or even preventing the initiation of investigations.

3. The Pre-Preliminary Examination Phase and Screening Ambiguities

A major unregulated challenge is the “Pre-Preliminary Examination Phase”. While the Rome Statute outlines the PE, it does not detail the initial screening of the massive volume of communications received under Article 15.

– Unregulated Discretion: In one reporting period, 617 out of 795 communications were dismissed as “manifestly outside the jurisdiction” of the Court during this unofficial phase.

– Lack of Review: The Statute provides no formal mechanism to review decisions made in this initial screening.

– Consequences: This lack of transparency can lead to a conservative approach, where the Prosecutor avoids complex or politically sensitive cases due to resource limits or external pressure.

4. Substantive Legal Challenges: Admissibility and Interests of Justice

The Prosecutor must establish a “reasonable basis” by evaluating three criteria: jurisdiction, admissibility, and interests of justice.

5. Challenges in Interpreting Complementarity

Under Article 1, the ICC is a “complementary” institution, meaning it only intervenes if national systems are “unable” or “unwilling” to prosecute.

The Venezuela Example: Venezuela requested a deferral of the ICC investigation under Article 18(2), claiming it was conducting genuine national investigations. The Prosecutor must exercise high vigilance to ensure such national actions are not merely “sham” proceedings designed to shield individuals from responsibility.

6. Judicial Oversight of the “Interests of Justice” (IoJ)

The IoJ criterion (Article 53(1)(c)) acts as a “negative” discretion; the Prosecutor must proceed unless it would not serve the interests of justice.

• The Afghanistan Case: In 2019, the PTC II rejected the Prosecutor’s request to investigate Afghanistan, citing the low probability of success and lack of state cooperation (particularly from the U.S.) as reasons why an investigation would not serve the IoJ.
• Appeals Chamber Ruling: In March 2020, the Appeals Chamber reversed this, ruling that the PTC should not conduct a de novo assessment of the IoJ and should only intervene if the Prosecutor’s decision is “manifestly unreasonable”. This ruling preserved the Prosecutor’s independence in pursuing difficult cases.

7. Political and Operational Challenges: pressure from Powerful States

The Prosecutor’s success depends heavily on state cooperation.

• Afghanistan and the U.S.: The U.S. government actively resisted the investigation, going as far as revoking Prosecutor Fatou Bensouda’s visa and imposing sanctions on ICC staff. This “politicization of the legal process” threatens the Court’s legitimacy.
• The Situation in Palestine: This case highlights the intersection of international law and high-stakes geopolitics. After Palestine’s accession to the Rome Statute, the Prosecutor requested a ruling on territorial jurisdiction under Article 19(3). Some viewed this as a conservative move to deflect direct political responsibility to the PTC.

8. Budgetary Constraints and the “Stop-Go” Approach

• Funding Issues: The Assembly of States Parties (ASP) limits the OTP’s budget, leading to a “Stop-Go” approach where resources are constantly shifted between “urgent” situations.
• Structural Inefficiency: This has caused some examinations, like Afghanistan, to drag on for over a decade. Long delays degrade evidence quality and witness memory.

9. Reform Strategies and New Directions

Under Prosecutor Karim Khan, the OTP has introduced several innovative strategies:

• The Hub Model: Viewing the ICC as a “hub at the center” of global accountability efforts rather than a detached peak.
• Positive Complementarity: Moving beyond passive non-intervention to active support for national authorities. A prime example is the cooperation in Colombia to strengthen national systems.
• Independent Expert Review (IER): The 2020 IER recommended formalizing a policy for “Phase 1” screening to increase transparency. It also called for greater flexibility in managing personnel and funds to eliminate the “Stop-Go” approach.

10. Conclusion and Recommendations

The Prosecutor’s discretion in the preliminary examination phase represents one of the most critical structural tensions in contemporary international criminal justice, where legal principles, institutional constraints, and geopolitical realities inevitably intersect, shaping both the effectiveness and the legitimacy of the Court’s global accountability mission. To strengthen the PE phase, the following is proposed:

1. Regulating the Pre-PE Phase: The OTP should publish a policy paper outlining clear criteria for the initial screening of Article 15 communications to prevent unregulated discretion.
2. Narrow Interpretation of IoJ: Confirming that “Interests of Justice” is an exceptional negative filter and not a tool for political or utilitarian efficiency assessments.
3. Sustainable Funding: The ASP must provide stable, flexible funding to avoid the “Stop-Go” cycle.
4. Strengthening Field Presence: Increasing the OTP’s presence in “situation countries” to collect information independently and engage directly with victims and civil society.

The evolution of the Court’s jurisprudence will therefore remain crucial in determining how prosecutorial discretion and judicial oversight interact within the preliminary examination phase of the International Criminal Court.

---

References

1. Ba, O. (2020). States of Justice: The Politics of the International Criminal Court. Cambridge University Press.
2. Bahreini, J., & Ramezani Ghavamabadi, M. H. (2024). Feasibility of the International Criminal Court’s investigation into the situation in Palestine and its potential consequences. Public Law Studies Quarterly (University of Tehran), 54(4), 2153-2176. [In Persian].
3. Bassiouni, M. C., & Hansen, D. (2019). The inevitable practice of the Office of the Prosecutor. In Contemporary issues facing the International Criminal Court (pp. 309–325). Brill Nijhoff. https://doi.org/10.1163/9789004304451_038
4. Bergsmo, M., & Pejić, J. (2008). Article 15: Prosecutor. In O. Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court — Observers’ Notes, Article by Article (2nd ed., pp. 581–593). Beck/Hart.
5. Corey-Boulet, R. (2011, September 28). Concern over ICC funding. Inter Press Service. https://www.ipsnews.net/2011/09/concern-over-icc-funding/
6. González Hernández, E. (2021). Venezuela and the International Criminal Court: A discussion paper (Translated from Spanish). Mass Violence Atrocities. https://stanleycenter.org/wp-content/uploads/2021/04/DPMVA-V-Venezuela-ICCGonzalezHernandez-v7.pdf
7. Hillebrecht, C. (2021). Saving the International Justice Regime: Beyond Backlash against International Courts. Cambridge University Press.
8. International Bar Association. (2020). Strengthening the International Criminal Court: A guide for States Parties (2nd ed.). https://www.ibanet.org/document?id=Strengthening-theInternational-Criminal-Court-A-Guide-for-States-Parties-2nd-Edition
9. International Criminal Court. (1998). Rome Statute of the International Criminal Court. (Translated by Iran Human Rights Documentation Center). http://www.iranhrdc.org
10. International Criminal Court. (2017). Public redacted version of “First registry report on victims’ representations pursuant to the Pre-Trial Chamber’s order ICC-02/17-6 of 9 November 2017”. Situation Afghanistan, ICC-02/17-10-Conf. https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2017_02980.PDF
11. International Criminal Court. (2018a). Final consolidated registry report on victims’ representations pursuant to the Pre-Trial Chamber’s order ICC-02/17-6 of 9 November 2017. Situation Afghanistan, ICC-02/17-29. https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2018_01334.PDF
12. International Criminal Court. (2018b). Public redacted version of Annex I to the Final Consolidated Registry Report on Victims’ Representations Pursuant to the Pre-Trial Chamber’s Order ICC-02/17-6 of 9 November 2017, 20 February 2018, ICC-02/17-29-AnxI. https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2018_01334.PDF
13. International Criminal Court. (2020). Situation in the State of Palestine, Prosecution Request Pursuant to Article 19(3) for a Ruling on the Court’s Territorial Jurisdiction in Palestine, No. ICC-01/18, 22 January 2020.
14. International Criminal Court. (2024, April 25). ICC Office of the Prosecutor launches policy on complementarity and cooperation. https://www.icc-cpi.int/news/icc-office-prosecutor-launches-policy-complementarity-and-cooperation
15. Mahdavinejad Arshloo, S., Rahmat, M. R., & Mansouri, S. M. (2023). Examining the structure and process of the Pre-Trial Chamber of the International Criminal Court. Comparative Criminal Jurisprudence, 3(5), 287-298. [In Persian].
16. Molano Ayala, P., & Valencia Cortés, P. A. (2024, November 8). Justice in tension: The role of the ICC in Venezuela’s repression. Dejusticia. https://www.dejusticia.org/en/justice-in-tension-the-role-of-the-icc-in-venezuelas-repress
17. Moreno-Ocampo, L. (2011). A positive approach to complementarity: The impact of the Office of the Prosecutor. In C. Stahn & M. M. El Zeidy (Eds.), The International Criminal Court and Complementarity: From Theory to Practice. Cambridge University Press.
18. Naderi, A. (2020). Challenges of investigating the situation of the Islamic Republic of Afghanistan in the International Criminal Court: Part II: Sanctions of the Court by the United States. https://bit.ly/3F2A2Y7 [In Persian].
19. Ochs, S. L. (2020). The United States, the International Criminal Court, and the situation in Afghanistan. Notre Dame Law Review Reflection, 95(2), 89. https://doi.org/10.2139/ssrn.3580495
20. Saedi, Z., & Salehi, J. (2021). The approach of the Prosecutor of the International Criminal Court in requesting a ruling on criminal jurisdiction in the situation of the State of Palestine. Journal of Criminal Law Research, 12(2), 185-208. [In Persian].
21. Shereshevsky, Y. (2025). Complementarity (un)fairness: Powerful states and their ability to avoid ICC proceedings by conducting domestic investigations. Journal of International Criminal Justice, mqaf013. https://doi.org/10.1093/jicj/mqaf013
22. Stegmiller, I. (2017). Article 15: Prosecutor. In M. Klamberg (Ed.), Commentary on the Law of the International Criminal Court (pp. 181–191). TOAEP.
23. Sterio, M. (2020). The International Criminal Court: Current challenges and prospect of future success. Case Western Reserve Journal of International Law, 52(1), Article 21, p. 8.
24. Wiebelhaus-Brahm, E., & Ainley, K. (2023). The evolution of funding for the International Criminal Court: Budgets, donors and gender justice. Journal of Human Rights, 22(1), 31–46. https://doi.org/10.1080/14754835.2022.2156276

Mehdi Soleimani, Salar Alizadeh