Could the PTC Order the OTP to Investigate the Mavi Marmara Situation?

As Bill Schabas noted in his recent post, the Comoros referral raises interesting questions concerning the Pre-Trial Chamber’s power to review a decision by the OTP not to open a full investigation into a situation. Most people who don’t keep a copy of the Rome Statute in their back pocket probably believe that the OTP has complete discretion concerning such declinations. In fact, that is not the case. Here, in relevant part, is Art. 53 of the Rome Statute (emphasis mine):

Article 53Initiation of an investigation1.         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.

…

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.

It is clear that Comoros would have the right under Art. 53(3)(a) to ask the Pre-Trial Chamber to review a decision by the OTP not to open a full investigation into the attack on the flotilla. And that would be true regardless of the OTP’s rationale for the declination: (1) lack of evidence that the attack involved a crime within the ICC’s jurisdiction; (2) admissibility concerns — which would turn on whether crimes allegedly committed during the attack were adequately grave and, if so, whether Israel was willing and able to investigate and prosecute those crimes itself; or (3)  the interests of justice.

But here is where things get interesting. If Comoros asked the PTC to review a decision by the OTP not to investigate the attack on the flotilla, thereby triggering Art. 53(3)(a), the PTC would have only one remedy if it disagreed with the OTP’s assessment of the merits of the referral — to “request the Prosecutor to reconsider that decision.” It could not order the OTP to open a full investigation into the attack. So if the OTP reconsidered its decision and again concluded that a full investigation was not warranted, that would be the end of the story.

Art. 53(3)(b), by contrast, would appear to put the PTC in a much more powerful position. According to that provision, the PTC could decide on its own to review the OTP’s decision not to act on the Comoros referral if the OTP determined that, despite the existence of an admissible crime in the Mavi Marmara situation, there were “nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.” In this scenario, the OTP’s decision would be effective “only if confirmed by the Pre-Trial Chamber.” In other words, it appears that the PTC could order the OTP to open a full investigation into the attack on the flotilla if it disagreed with the OTP’s conclusion that the interests of justice required declining to investigate.

Art. 53(3)(b) raises two difficult questions. The first is substantive: what does “interests of justice” mean? That is a very difficult issue, one beyond the scope of this post. Let me simply note here that the primary issue in the debate is whether Art. 53(3)(b) would permit the OTP to decline to investigate a situation on the ground that, though serious crimes were committed, the state in question had decided to adopt a non-punitive justice mechanism, such as a general amnesty, in order to promote peace and reconciliation. Art. 53(3)(b) reflects “creative ambiguity” on that question, according to scholars and individuals involved in the provision’s drafting. The OTP, however, has publicly stated that the “interests of justice” do not include the “interests of peace”; in its view, it is the Security Council’s role, acting through its Art. 16 deferral power, to assess whether non-punitive justice mechanisms should take precedence over ICC prosecutions. Most major human-rights groups agree with that position.

The second question concerns the relationship between Art. 53(3)(a) and Art. 53(3)(b) in a situation in which the OTP specifically — and exclusively — invokes the interests of justice to decline to investigate a situation, thereby potentially triggering Art. 53(3)(b). If the referring state asks for review under Art. 53(3)(a), is the PTC limited to asking the Prosecutor to reconsider her decision not to open a full investigation? In other words, if a state invokes Art. 53(3)(a), does that prevent the PTC from invoking the much stronger Art. 53(3)(b)? A literal interpretation of Art. 53(3) suggests an affirmative answer, because in such a scenario the PTC would not be reviewing the OPT’s interests of justice declination “on its own initiative.” That interpretation, however, doesn’t make much sense — it basically forces referring states to not challenge a declination in the hope that the PTC will be sufficiently outraged by the OTP’s “interests of justice” calculation to interject itself into the discussion. I see no principled justification for putting states in that situation.

The better reading, I would thus suggest, is that Art. 53(3) simply treats “interests of justice” declinations differently than declinations based on jurisdiction or admissibility. If the OTP declines a state referral on jurisdictional or admissibility grounds, the PTC must wait for a state challenge and can only order the Prosecutor to reconsider her decision. But if the OTP declines a state referral on “interests of justice” grounds, the PTC can order the OTP to open a full investigation as a result of the referring state’s challenge or on its own initiative. That interpretation may be difficult to reconcile with a literal interpretation of Art. 53(3), but it is the only interpretation that makes sense — especially given that OTP assessments of the interests of justice are likely to be far more contentious than OTP assessments of jurisdiction or admissibility. (Which is not to say that the latter are objective determinations!)

In conclusion, although Comoros could ask the PTC to review an OTP decision not to open a full investigation into the attack on the flotilla regardless of the OTP’s rationale for its decision, the PTC could order the OTP to investigate only if the declination was based on the interests of justice.

Stay tuned.

NOTE: The discussion in this post concerning the function of Art. 53(3) applies to Security Council referrals, as well. As the text of the provision makes clear, the Security Council has the same right as a state to challenge an OTP decision not to act on a referral. It is nevertheless difficult to imagine the OTP ever declining a Security Council referral.