Could the Prosecutor Decide Not To Investigate the Libyan Situation?

Moreno-Ocampo said the following today:

The chief prosecutor of the International Criminal Court says information of attacks on civilians by forces loyal to Libyan leader Moammar Gadhafi suggests they could constitute a crime against humanity.

Luis Moreno Ocampo says he has assembled a team to collect more information and has been in contact with Libyan officials and army officers to understand the command structure in Libya.

He says he will decide “within days” whether to open an investigation of those responsible for civilian deaths.

It may come as a surprise to some readers, but nothing in the Rome Statute obliges the Office of the Prosecutor to act on a Security Council referral.  Indeed, Article 53 indicates that the Prosecutor has the discretion not to investigate a referred situation:

1.  The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute. In deciding whether to initiate an investigation, the Prosecutor shall consider whether:

(a)     The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed;
(b)     The case is or would be admissible under article 17; and
(c)     Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.

If the Prosecutor determines that there is no reasonable basis to proceed and his or her determination is based solely on subparagraph (c) above, he or she shall inform the Pre-Trial Chamber.

2.  If, upon investigation, the Prosecutor concludes that there is not a sufficient basis for a prosecution because:

(a)     There is not a sufficient legal or factual basis to seek a warrant or summons under article 58;
(b)     The case is inadmissible under article 17; or
(c)     A prosecution is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime;

the Prosecutor shall inform the Pre-Trial Chamber and the State making a referral under article 14 or the Security Council in a case under article 13, paragraph (b), of his or her conclusion and the reasons for the conclusion.

3.  (a)     At the request of the State making a referral under article 14 or the Security Council under article 13, paragraph (b), the Pre-Trial Chamber may review a decision of the Prosecutor under paragraph 1 or 2 not to proceed and may request the Prosecutor to reconsider that decision.

(b)     In addition, the Pre-Trial Chamber may, on its own initiative, review a decision of the Prosecutor not to proceed if it is based solely on paragraph 1 (c) or 2 (c). In such a case, the decision of the Prosecutor shall be effective only if confirmed by the Pre-Trial Chamber.

Two things are worth noting about Article 53.  First, although it gives the Prosecutor the right not to open an investigation into a referred situations, the Pre-Trial Chamber has the right to ask him to reconsider his decision.  That’s Article 53(3)(a).  Second, and more importantly, if the Prosecutor’s decision not to investigate a referred situation is based solely on the “interests of justice” — such as that an investigation would undermine the prospects for peace — the Pre-Trial Chamber can order the Prosecutor to open an investigation.  The Prosecutor has unreviewable discretion with regard to referred situations only if he believes that there is no reason to believe that a crime within the Court’s jurisdiction has been committed in the situation (a very low standard) or that the situation does not satisfy the admissibility requirements of Article 17, which deals with complementarity and gravity.  That’s Article 53(3)(b).

I think it is very unlikely that Moreno-Ocampo will decline to investigate the Libyan situation.  But it’s interesting to note that he can — and that, if he based a declination on complementarity or gravity grounds, there is nothing the Pre-Trial Chamber could do about it.