What Happens if Comoros Appeals? (Answer: Not Much.)

by Kevin Jon Heller

According to Marlise Simons at the New York Times, Comoros intends to appeal the OTP’s decision not to open a formal investigation into Israel’s attack on the MV Mavi Marmara. That’s its right — but it’s a right without a remedy, because the judges cannot order the OTP to investigate the attack. The relevant provision in the Rome Statute is Art. 53:

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.

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.

The problem for Comoros is that the OTP refused to open a formal investigation because it concluded that the crimes in question are not grave enough to warrant investigation — Art. 53(1)(b). As a result, although Comoros has the right under Art. 53(3)(a) to ask the Pre-Trial Chamber (PTC) to review the OTP’s decision, the PTC does not have the authority to order the OTP to investigate. All it can do is “request the Prosecutor to reconsider that decision” — to which she would no doubt reply, “thanks, but no.”

The situation would have been very different if the OTP had deemed the crimes adequately grave but refused to investigate because of the “interests of justice” — Art. 53(1)(c). In that case, the PTC would have had the right under Art. 53(3)(b) to review that decision sua sponte and the authority to refuse to confirm the OTP’s decision — which would presumably mean that the PTC could have ordered the OTP to formally investigate. It was thus a very smart move by the OTP to rely on gravity instead of the interests of justice.

No one quite knows what would happen if the PTC ever ordered the OTP to conduct a formal investigation against its will. Such a situation, of course, seems practically untenable. We’ll have to wait a while longer to find out.

http://opiniojuris.org/2014/11/07/happens-comoros-appeals/

4 Responses

  1. Response…All it can do is “request the Prosecutor to reconsider that decision” — to which she would no doubt reply, “thanks, but no.” … No one quite knows what would happen if the PTC ever ordered the OTP to conduct a formal investigation against its will.

    If the Prosecutor had the sole discretion to decide the gravity or admissibility of crimes, then it seems odd for the authors to include a state right of appeal or provide that the Prosecutor’s decision can only be effective if it is also confirmed in the case of a review initiated by the Pre-Trial Chamber itself.

    Such a reading downplays the implications of Article 53(3)(b) and the fact that the Judges can always initiate action on the basis of an appeal and subsequent Pre-Trial Chamber review to discipline or remove a Prosecutor from office who “Repeatedly causes unwarranted delay in the initiation, prosecution or trial of cases, …” under the auspices of Rule 24 of the Court’s own Rules of Procedure and Evidence.

    I personally think your estimate is correct in this instance, but it is something of an oxymoron to say that war crimes or murders undoubtedly happened, but are not of “sufficient gravity” to warrant an investigation or prosecution by either the state parties or the ICC.

    These tentative findings (contained in both a UNHRC and OTP report) regarding war crimes lend strong support for the idea that extraditable offenses have occurred. Turkey has ordered the arrest of four former Israeli military chiefs over the raid as a result of its own ongoing investigation and trial. It presumably has treaties on extradition with the NATO allies. A former IDF JAG even warned the IDF commanders named as defendants in the Turkish Mavi Marmara trial against traveling to the USA: ‘Asked about any concerns the four Israelis may have about traveling overseas, Mandelblit said, “Naturally they have no reason to travel to Turkey because they won’t be able to return and they should definitely stay away from the US.”‘ http://www.ynetnews.com/articles/0,7340,L-4302090,00.html

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  1. […] the situation is not of sufficient gravity to warrant the opening of an investigation. As noted by Kevin Jon Heller,  the Comoros, who referred the situation in the first place, can “appeal” the […]

  2. […] the situation is not of sufficient gravity to warrant the opening of an investigation. As noted by Kevin Jon Heller, the Comoros, who referred the situation in the first place, can “appeal” the decision, but the […]

  3. […] the situation is not of sufficient gravity to warrant the opening of an investigation. As noted by Kevin Jon Heller, the Comoros, who referred the situation in the first place, can “appeal” the decision, but the […]