The Pre-Trial Chamber’s Dangerous Comoros Review Decision

by Kevin Jon Heller

In late 2014, the Office of the Prosecutor rejected a request by Comoros to open a formal investigation into Israel’s attack on the Mavi Marmara. To my great surprise, the Pre-Trial Chamber (Judge Kovacs dissenting) has now ordered the OTP to reconsider its decision. The order does not require the OTP to open a formal investigation, because the declination was based on gravity, not on the interests of justice — a critical distinction under Art. 53 of the Rome Statute, as I explain here. But the PTC’s decision leaves little doubt that it expects the OTP to open one. Moreover, the PTC’s decision appears designed to push the OTP to decline to formally investigate a second time (assuming it doesn’t change its mind about the Comoros situation) on the basis of the interests of justice, which would then give the PTC the right to demand the OTP investigate.

To put it simply, this is a deeply problematic and extremely dangerous decision — nothing less than a frontal assault on the OTP’s prosecutorial discretion, despite the PTC’s claims to the contrary. I will explain why in this (very long) post.

At the outset, it is important to emphasise that we are dealing here with situational gravity, not case gravity. In other words, the question is not whether the OTP should have opened a case against specific members of the IDF who were responsible for crimes on the Mavi Marmara, but whether the OTP should have opened a situation into the Comoros situation as a whole. The Rome Statute is notoriously vague about the difference between situational gravity and case gravity, even though it formally adopts the distinction in Art. 53. But it is a critical distinction, because the OTP obviously cannot assess the gravity of an entire situation in the same way that it assesses the gravity of a specific crime within a situation.

The PTC disagrees with nearly every aspect of the OTP’s gravity analysis. It begins by rejecting the OTP’s insistence (in ¶ 62 of its response to Comoro’s request for review) that the gravity of the Comoros situation is limited by the fact that there is no “reasonable basis to believe that ‘senior IDF commanders and Israeli leaders’ were responsible as perpetrators or planners of the apparent war crimes’.” Here is how the PTC responds to that claim:

23. The Chamber is of the view that the Prosecutor erred in the Decision Not to Investigate by failing to consider whether the persons likely to be the object of the investigation into the situation would include those who bear the greatest responsibility for the identified crimes. Contrary to the Prosecutor’s argument at paragraph 62 of her Response, the conclusion in the Decision Not to Investigate that there was not a reasonable basis to believe that “senior IDF commanders and Israeli leaders” were responsible as perpetrators or planners of the identified crimes does not answer the question at issue, which relates to the Prosecutor’s ability to investigate and prosecute those being the most responsible for the crimes under consideration and not as such to the seniority or hierarchical position of those who may be responsible for such crimes.

These are fundamentally irreconcilable conceptions of “potential perpetrator” gravity. The OTP is taking the traditional ICTY/ICTR approach, asking whether the Israeli perpetrators of the crimes on the Mavi Marmara are militarily or politically important enough to justify the time and expense of a formal investigation. The PTC, by contrast, does not care about the relative importance of the perpetrators; it simply wants to know whether the OTP can prosecute the individuals who are most responsible for committing the crimes in question.

To see the difference between the two approaches — and to see why the OTP’s approach is far better — consider a hypothetical situation involving only one crime: a group of the lowest-ranking soldiers from State X executes, against the stated wishes of their commanders, 10 civilians from State Y. The OTP would conclude that the “potential perpetrator” gravity factor militates against opening a formal investigation in State Y, because the crime in question, though terrible, did not involve militarily important perpetrators. The PTC, by contrast, would reach precisely the opposite conclusion concerning gravity, deeming the soldiers “most responsible” for the crime by virtue of the fact that they acted against orders. After all, no one else was responsible for the decision to execute the civilians.

The PTC’s approach to “potential perpetrator” gravity is simply bizarre. In the context of a typical situation involving large numbers of perpetrators and crimes, it would make little sense for the OTP to build a specific case around a crime committed solely by the least important perpetrators imaginable. But that is not even the issue regarding the IDF attack on the Mavi Marmara. The issue here is whether the Comoros situation as a whole is so grave that the OTP should prioritise formally investigating it over formally investigation the situations in Afghanistan, Georgia, Colombia, etc. At this level — at the level of situational gravity — the PTC’s interpretation of “most responsible” makes no sense at all. Imagine two situations based on the scenario above. In Situation 1, the low-level soldiers acted alone. In Situation 2, the low-level soldiers executed the civilians because their superiors ordered them to. According to the PTC, there is no gravity difference between an OTP investigation focusing on the low-level soldiers in Situation 1 and an OTP investigation focusing on the superiors in Situation 2, because in each situation the OTP would be investigating the individuals “most responsible” for executing the civilians. That defies common sense. To have any meaning at all, the “potential perpetrator” gravity factor must focus on the importance of the perpetrators relative to the hierarchy of their state or organisation; it cannot focus solely on their importance relative to the crime committed.

This seems obvious — at least to the OTP and to me. So why doesn’t it seem obvious to the PTC? The answer, I would suggest, is that Comoros isn’t the typical situation in which the large number of perpetrators and crimes means that the OTP could pursue literally hundreds of different cases. It is essentially a situation that involves at most one case — involving the individuals responsible for the attack on the Mavi Marmara. Situational gravity thus looks very much like case gravity, making it tempting to ask only whether the case in question is sufficiently grave to justify prosecution. But that is not the issue. Again: the issue is whether the Comoros situation is sufficiently grave relative to other situations to justify a formal investigation. And it is difficult to answer that question in the affirmative, given the OTP’s findings concerning the relative unimportance of the individuals responsible for the crimes on the Mavi Marmara.

The PTC’s approach to “potential perpetrator” gravity would thus seems to be based on a basic misunderstanding of the difference between situational and case gravity. And indeed, the PTC then makes its misunderstanding explicit when it discusses the “scale of the crimes” gravity factor. Here is what the PTC says:

26. The Chamber notes that the Prosecutor and the Comoros essentially agree on the numbers of victims of the identified crimes. In the view of the Chamber, ten killings, 50-55 injuries, and possibly hundreds of instances of outrages upon personal dignity, or torture or inhuman treatment, which would be the scale of the crimes prosecuted in the potential case(s) arising from the referred situation, in addition to exceeding the number of casualties in actual cases that were previously not only investigated but even prosecuted by the Prosecutor (e.g. the cases against Bahar Idriss Abu Garda and Abdallah Banda), are a compelling indicator of sufficient, and not of insufficient gravity. The factor of scale should have been taken into account by the Prosecutor as militating in favour of sufficient gravity, rather than the opposite, and in failing to reach this conclusion, the Prosecutor committed a material error.

Here the PTC explicitly compares the gravity of the Comoros situation to the gravity of one case within a situation. The number of victims in the Comoros situation is indeed comparable to the number of victims in the JEM attack on the UN peacekeepers in Darfur. But the Abu Garda and Abdallah Banda case was one of many cases within the Darfur situation; when we compare the number of victims in the Comoros situation to the Darfur situation as a whole, it is clear that the PTC has no basis whatsoever to insist that the “scale” factor counsels in favour of finding the Comoros situation grave enough to formally investigate. The comparison is then between 10 civilian deaths and hundreds of thousands.

Two final points. To begin with, it’s important to note that the PTC’s flawed decision was only possible because the OTP took the ill-advised step of releasing a 61-page document explaining why it had decided not to formally investigate the Comoros situation. Recall what I wrote last November:

As I read – and re-read – the OTP’s decision regarding the attack on the Mavi Marmara, one thought kept going through my mind: what was the OTP thinking? Why would it produce a 61-page document explaining why, despite finding reason to believe the IDF had committed war crimes during the attack, it was not going to open an investigation? After all, the OTP took barely 10 pages to explain why it was not going to open an investigation into British war crimes in Iraq. And it routinely refuses to open investigations with no explanation at all.

Had the OTP not produced such a lengthy declination decision, the PTC would have had nothing to review — and thus nothing to second guess. I’d hate to be the legal officer who sold Fatou Bensouda on the idea that the OTP should explain its reasoning in such detail. I doubt the OTP will repeat its mistake in the future. And that’s a shame in terms of ICC transparency.

But even here we have to single out the PTC for criticism. Nothing in the Rome Statue compelled the PTC to engage in such micromanagement of the OTP’s situational-gravity analysis. Indeed, Judge Kovacs’ dissent persuasively argues not only that the PTC did not have to address the merits of Comoros’ application for review (¶¶ 2-5), but also that the majority adopted an inappropriately restrictive standard of review (¶¶ 7-8):

7. The Majority introduced for the first time a standard for reviewing negative decisions undertaken within the ambit of article 53(1) without explaining the legal basis for its endorsement. In this respect, and regardless of the practicality or validity of applying the standard of review endorsed by the Majority, I do not believe that the Pre-Trial Chamber is called upon to sit as a court of appeals with respect to the Prosecutor’s decisions. Rather the Pre- Trial Chamber’s role is merely to make sure that the Prosecutor has not abused her discretion in arriving at her decision not to initiate an investigation on the basis of the criteria set out in article 53(1) of the Statute.

8. This view calls for a more deferential approach when reviewing the Prosecutor’s decision on the basis of the criteria set out in article 53(1), and is implied in the text of article 53. It provides the Prosecutor with some margin of discretion in deciding not to initiate an investigation into a particular situation. This interpretation is more in line with the main idea underlying article 53 namely, to draw a balance between the Prosecutor’s discretion/independence and the Pre-Trial Chamber’s supervisory role in the sense of being limited to only requesting the Prosecutor to reconsider her decision if necessary. To argue that the power of the Pre-Trial Chamber exceeds this point is daring. The Majority does not go in this direction. Instead, it preferred to conduct a stringent review, which clearly interferes with the Prosecutor’s margin of discretion.

Had the majority adopted an “abuse of discretion” standard of review, it would not have been able to engage in the kind of second-guessing that characterises the Comoros decision. And more importantly, the decision would not provide the OTP with a powerful incentive to avoid explaining its reasoning concerning situational gravity in the future — thereby promoting both prosecutorial discretion and transparency.

In the end, though — and this is a critical point — the PTC seems far more interested in maximising its own power (a recurring problem) than protecting prosecutorial discretion. Consider the following paragraphs (emphasis mine):

13. The question that is asked of the Prosecutor by article 53(1) of the Statute is merely whether or not an investigation should be opened. The Prosecutor’s assessment of the criteria listed in this provision does not necessitate any complex or detailed process of analysis. In the presence of several plausible explanations of the available information, the presumption of article 53(1) of the Statute, as reflected by the use of the word “shall” in the chapeau of that article, and of common sense, is that the Prosecutor investigates in order to be able to properly assess the relevant facts. Indeed, it is precisely the purpose of an investigation to provide clarity. Making the commencement of an investigation contingent on the information available at the pre-investigative stage being already clear, univocal or not contradictory creates a short circuit and deprives the exercise of any purpose. Facts which are difficult to establish, or which are unclear, or the existence of conflicting accounts, are not valid reasons not to start an investigation but rather call for the opening of such an investigation. If the information available to the Prosecutor at the pre-investigative stage allows for reasonable inferences that at least one crime within the jurisdiction of the Court has been committed and that the case would be admissible, the Prosecutor shall open an investigation, as only by investigating could doubts be overcome. This is further demonstrated by the fact that only during the investigation may the Prosecutor use her powers under article 54 of the Statute; conversely, her powers are more limited under article 53(1) of the Statute.

14. The Chamber recognises that the Prosecutor has discretion to open an investigation but, as mandated by article 53(1) of the Statute, that discretion expresses itself only in paragraph (c), i.e. in the Prosecutor’s evaluation of whether the opening of an investigation would not serve the interests of justice. Conversely, paragraphs (a) and (b) require the application of exacting legal requirements. This is not contradicted by the low evidentiary standard of article 53(1)(a) of the Statute, or by the fact that an analysis under article 53(1)(b) of the Statute involves potential and not actual cases.

It will be the rare situation indeed that does not satisfy Art. 53(1)(a) and Art. 53(1)(b). How many non-frivolous referrals do not contain allegations of at least one crime within the Court’s jurisdiction? And how many situations will fail gravity analysis in light of the PTC’s insistence that a situation involving only low-level perpetrators and less than a dozen deaths is grave enough for a formal investigation? If allowed to stand, then, the PTC’s decision will force the OTP to either open formal investigations into literally dozens of situations (including all of the current situations it is preliminarily examining) or decline to investigate specifically on the basis of interests of justice — the one criterion, according to the PTC, where it maintains considerable discretion. Given the OTP’s evident resource limitations, that is not really a choice.

And therein lies true danger of the PTC’s Comoros decision. Recall what I said earlier: when the OTP declines to open a formal investigation because a situation does not include a crime within the Court’s jurisdiction or because the situation is not adequately grave, the PTC can only request the OTP reconsider its decision not to investigate. The current decision is an example. But when the OTP declines to open a formal investigation because such an investigation would not be in the interests of justice, the PTC can demand the OTP reconsider. In practice, then, the Comoros decision will force the OTP to decline to open investigations on the one ground that is always subject to “hard” review by the PTC.

Put more simply: if the Comoros decision is allowed to stand, the PTC will have given itself final say over all OTP decisions not to open a formal investigation into a situation. That is fundamentally incompatible with the Rome Statute’s guarantee of prosecutorial independence, and it is not acceptable.

NOTE: I was asked on twitter whether the OTP can appeal the PTC’s decision. I assume it can, because the decision rejects the OTP’s understanding of gravity, which is an aspect of admissibility. Art. 82(1) of the Rome Statute provides that “[e]ither party may appeal any of the following decisions in accordance with the Rules of Procedure and Evidence… (a) A decision with respect to jurisdiction or admissibility.”

30 Responses

  1. Thank you for this thorough analysis.

    The PTC seriously fudged (an ICL term of art) a gravity opinion once already in one direction almost ten years ago, and it is doing it in the other direction this time. Hopefully the OTP will appeal so we are not left with this precedent.

    And very hopefully the OTP will continue to explain their decisions despite the decision.

  2. Kevin, on your last point: since article 82(1) Rome Statute starts by saying “[e]ither party”, wouldn’t this suggest that there must already be a case? After all, this suggests a plurality of parties, i.e. two parties, and it does not seem likely that the PTC is considered a party for purposes of appeal.

    A second question: who actually takes decisions on jurisdiction and admissibility (subject to appeal)? Article 17 Rome Statute indicates that this is “the Court” and facially this covers the OTP; however article 19 Rome Statute refers to the Prosecutor and to the Court, which may suggest such decisions are not made by the OTP per se.

    Any thoughts?

  3. Kevin, thanks for your detailed analysis. I think you are spot on about case v. situational gravity. It seems relatively clear that the PTC failed to consider the distinction, but I wonder what the implications of this oversight actually are. While I agree with you that there is a major difference at a conceptual level, it does seem that, in specific instances, the distinction may be less important than in others. The Comoros situation seems like a paradigmatic instance (I don’t want to use the word ‘case’!) where these distinctions are less pronounced. If crimes are committed on a ship or in the territory of a micro-state (eg San Marino?), then don’t you think it is logical to compare things that are comparable, i.e. specific incidents/potential crimes committed in analogous circumstances? Don’t get me wrong, the conceptual distinction should be maintained, and the fact that the PTC missed it altogether is inexcusable. I am just wondering about the practicalities of engaging in a comparative assessment once we’ve cleared that hurdle, i.e. gotten the law right. I would be curious to get your thoughts on that.

    You go on to say: “the issue is whether the Comoros situation is sufficiently grave relative to other situations to justify a formal investigation. And it is difficult to answer that question in the affirmative, given the OTP’s findings concerning the relative unimportance of the individuals responsible for the crimes on the Mavi Marmara.”

    This, to me, is precisely the problem. I think the PTC – and Kovac in dissent – both misunderstand the principle of ‘those most responsible’. As you argue (correctly, in my view), their interpretation of the term leads to absurd results, especially in the context of situational v. case gravity. But isn’t the problem here also that the OtP’s ‘findings’ are simply unpersuasive? I don’t see why senior IDF commanders couldn’t be held accountable for the incidents on the Mavi Marmara. I assume they were involved in the decision-making, issued orders, etc. So why wouldn’t the OtP go after them? I realise this is not why the OtP didn’t initiate an investigation, but it’s still something to consider.

    With respect to gravity specifically, I find the tone of the PTC decision rather surprising and potentially counterproductive. The language seems confrontational (how many times do they say that “the Prosecutor erred…”?), as if we were talking about simple legal mistakes, rather than inherently controversial judgment calls… also, couldn’t agree more with your assessment of the systemic implications of this decision, especially its impact on prosecutorial discretion.

    Yet, at the end of the day, I can’t help but feel a sense of relief. We may disagree with the PTC’s method and arguments, but the OtP’s conclusion about gravity in this situation made me rather uncomfortable. Despite all the cheap talk about this not being a quantitative assessment, I can’t help but think that the OtP did precisely that: it’s not grave enough because not enough people were killed (incredibly enough, Kovacs’ dissent basically endorses this notion of gravity).

    I see the problem with the PTC’s assessment of ‘the impact of the crimes’, and how jus as bellum and other moral considerations enter through the backdoor if gravity is not limited to clearly defined legal parameters. And yet, if gravity is to have some deeper meaning, more than just a quantitative tabulation of the number of dead, then surely the OtP and the judges have to look at the bigger picture? I understand this is inherently controversial, but I am quite pleased that the OtP will have to revisit this issue and provide a more coherent rationale for its decision to not investigate.

    In the end, maybe the OtP will come back with another decision to not investigate, again invoking gravity (better argued this time) and thus implicitly calling the PTC’s bluff? What does the PTC do then? It can issue another decision asking the OtP to revisit its decision, and so what? We will have a stalemate. I don’t think prosecutorial discretion is dead just yet.

  4. Andre,

    I would think that the parties here are the OTP and Comoros, not the OTP and the PTC. Presumably, Comoros would have been entitled to appeal if the PTC had ruled against it.

    As for your second question, I have always thought the judges have the final say on jurisdiction and admissibility questions — such as whether Palestine is a state. After all, 19(3) specifically gives the OTP the power to seek rulings from “the Court” on those questions. Or am I misunderstanding you?

  5. Patryk,

    I think you make a number of very important points. A few thoughts:

    1. I agree that, in theory, there may be situations in which situational gravity could be assessed only through a comparison to specific cases. At a very minimum, though, there should be no larger situation into which the smaller situation could be folded. (Your micro-state example, perhaps?) The problem with the Comoros situation, as I’ve noted before, is that it is simply a backdoor attempt to get the OTP to investigate the Israel/Palestine conflict. If it does ever investigate, the OTP needs to focus on the larger situation — not on a tiny situation in which, conveniently, only one side has committed crimes.

    2. I completely agree that the OTP’s gravity analysis is itself problematic, for all the reasons you mention. I was rather shocked by how easily it dismissed the idea that higher-ups could not be held responsible for the crimes on the Mavi Marmara; the PTC’s thoughts on that issue — especially the “live fire” from above — are by far the most convincing in the decision. I would have reached the OTP’s conclusion, but in a very different manner — one that emphasised the limited scope of the situation and its one-sided nature.

    3. I was also shocked by the nasty tone of the decision. The condescending “we expect the Prosecutor will fulfil her mandate” comment was exceptionally uncivil, unnecessary, and unprofessional. The OTP, for all its flaws, deserves better.

    4. We will see what the OTP does now! I hope it will appeal, and I expect it will. I could also easily see it doing exactly what you say — refuse once again to investigate on the basis of gravity. Indeed, if it loses the appeal, that is exactly what it should do. It can’t buy into the PTC’s approach to the interests of justice, for the reasons I mention (and with which you seem to agree).

  6. After all the wonderfully Byzantine procedural debate, is is right or not that there should be some accountability for what happened aboard the Mavi Marmara?

  7. A Layman,

    Of course there should be accountability. The question is whether the ICC is the right place for it.

  8. Thanks for the post Kevin . Well : ” one scroll , can’t have it all ..” yet , I was wondering simply :

    Have you ever heard of ” vicarious liability” ?? I mean , an official , can, and should be responsible , for crimes or torts of his agent , due simply to :

    Lack of training, lack or educating him (his agent). So , with all due respect , the Rome convention ( and other international laws ) specifically , prescribed that , a military commander , needs to be aware of possible outcomes , and prevent , crimes of soldiers , subordinated to him , so , article 28 to the Rome convention (” responsibility of commanders and other superiors” ) states clearly :

    a) “….. As a result of his or her failure to exercise control proper over such forces….”

    And more:

    ” (i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; ”

    So, with all due respect, I find it incompatible, with that assumption, and fictitious example, you have posted , of those soldiers, acting alone apparently, without the responsibility of their superiors.

    For , one will have to prove first , or deal first : with – effective control , lack or not , of education and instructions, before dismissing any commander , and superior . On the battlefield, not an easy task!!

    All that , without expressing here , any opinion concerning the Marmara vessel case , since, what happened there, factually , is far as hell from the common assumptions. But , the Israeli governments , always choose not to deal with judicial arenas , and here are the results , over and over .


  9. Kevin: I take your point. However, the word ‘party’ would usually be used in relation to a treaty (or agreement), a case, or a dispute. The first meaning can be ruled out, the second is likely (at least taking into account direct context, suggesting decisions in relation to actual cases), whereas the third is possible.

    This last does appear to fit with article 18 Rome Statute, especially since reference to a State here is cross-referenced to article 82; article 82 also mentions a State but in relation to a specific issue different from the one at issue in article 18; hence, party in article 82(1) must also include a State.

    On my second question, I again take your point, but what I was wondering about is whether the PTC’s review and request for reconsideration can be argued to be “a] decision with respect to jurisdiction and admissibility” in the sense of article 82(1). Article 19(1) indicates that the Court may determine the admissibility of a case, but this article is concerned with challenges to the jurisdiction and admissibility by a State rather than claims in favour of such jurisdiction and admissibility.

  10. Re: “Put more simply: if the Comoros decision is allowed to stand, the PTC will have given itself final say over all OTP decisions not to open a formal investigation into a situation. That is fundamentally incompatible with the Rome Statute’s guarantee of prosecutorial independence, and it is not acceptable.”

    I’ve lost count of the number of experts who’ve claimed article 119 provides a right of action to challenge the Prosecutor’s decision to accept the Secretary General’s decision on the validity of Palestine’s accession.

    It must be acceptable to challenge these decisions too, since Rules 24-26 of the Court’s own Rules of Procedure and Evidence – read together with Article 46 of the Statute – have always allowed anyone at all to transmit to the Presidency (which may also initiate proceedings for removal from office on its own motion) a confidential complaint against the Prosecutor for the “grave breach of duty” incurred by “repeatedly causing unwarranted delay in the initiation, prosecution or trial of cases.” All that’s required is an absolute majority of the Assembly of State Parties to agree, based upon the evidence, and the question of her independence becomes entirely moot.

    Re: “consider a hypothetical situation involving only one crime: a group of the lowest-ranking soldiers from State X executes, against the stated wishes of their commanders, 10 civilians from State Y.”

    My how the mighty have fallen. Only two days ago Shayetet (Flotilla) 13 made headlines once again when Snowden leaked a cable that said its members were behind the assassination of Syrian General Muhammad Suleiman in 2008. Former IDF Commander Benny Gantz awarded members medals and credited them with “initiating overt and covert operations”. Before you start dealing in hypotheticals about “the least important perpetrators imaginable”, you should note that in this particular instance, the Commander and staff of the elite Flotilla 13 commando unit are considered senior IDF assignments and they are on a conveyor belt for future promotions to the General Staff or other high level positions. Like US Seal Team Six, they frequently operate under the direct control of the national security cabinet and not the day-to-day departmental chain of command. They are the subject of books, documentaries, a few thousand Israel government propaganda videos, and should be considered of high political and military importance.

  11. I think the OTP’s recent attempts at transparency regarding its decisions about whether to open a formal investigation have been enormously helpful, and I hope this decision does not cause them to revisit that policy. I don’t think it will, to be honest. Transparency is listed as a key strategic objective in the most recent OTP Strategic Plan (2012-2015), so I think it is something they are committed to.

  12. Thank you for this thorough post.

    I am of two minds about this decision.

    On the hand, I completely agree with Kevin that the decision encroaches on the OTP’s independence. It is also very unfortunate that the PTC could not resist opining on the merits of the case.

    On the other hand, I am uncomfortable with the OTP making factual and legal findings with respect to responsibility for the attack where it has not undertaken an independent investigation and was unable to receive information from either Turkey or Israel.

    In any event, as Kevin notes, the PTC has merely requested that the OTP reconsider its decision, and the PTC does not have the power to order an investigation. Even if could force an investigation, it cannot compel OTP prosecutors to indict anyone. The OTP has opened investigations in the past without issuing indictments.

    So it would seem that we effectively have an advisory opinion from the PTC on its reading of Article 53 of the Rome State. I don’t think that the decision can be appealed under Art. 82 for the reasons Andre mentions, but even if it could, what does the OTP have to gain by appealing?

  13. Milan,

    Presumably, the Comoros decision is an indication of how the PTC will approach gravity determinations, as well as the standard for opening a formal investigation, in the future. So how can the OTP not appeal?

    I still do not understand why Art. 82 does not give the OTP the right to appeal the decision. There is a dispute here between Comoros and the OTP. The focus of that dispute is how the PTC should assess gravity, which is an aspect of admissibility. Art. 82 permits either party to appeal decisions that address admissibility.

  14. Dear Kevin,

    I agree that the OTP is in an awkward position but since the PTC can only require it to investigate in one specific circumstance that we agree is not implicated here, I’m not sure what is to be gained by appealing.

    In terms of why I don’t think the OTP can appeal, the Rome Statute conceives of admissibility in terms of cases, not situations. See in particular art. 17(1). The Rome State also does not bestow the OTP with the opportunity to challenge admissibility under art. 19 although it does allow the OTP to “seek a ruling from the Court regarding a question of jurisdiction or admissibility” which can likely only take place after the OTP indicts a specific person.

    Thank you for the interesting post.

  15. ‘Accountability of the Mavi Marmara incident..’

    The IDF commandos used lethal force to end the kidnapping of two of their fellow soldiers, one whom had been stabbed in the belly by the ‘humanitarian aid workers’,

    Live fire was coming from the ship and directed at the commandos, to make matters worse.

  16. Re: “The problem with the Comoros situation, as I’ve noted before, is that it is simply a backdoor attempt to get the OTP to investigate the Israel/Palestine conflict. If it does ever investigate, the OTP needs to focus on the larger situation — not on a tiny situation in which, conveniently, only one side has committed crimes.”

    As John Oliver says from time to time “How can this still be a thing?” There can’t be any doubt whatsoever by this point in time that the situation in Palestine involves crimes that are listed in the Rome Statute, which are of sufficient gravity to demand an investigation (if Article 53(1) contains a mandate to conduct one, as these Judges have suggested).

    It doesn’t require a vast expenditure of time or effort to locate prima facie video evidence on Youtube of the current Prime Minister of Israel and members of his party list standing on territory illegally annexed to Israel (Har Homa) after the Six Day War bragging about the on-going crimes he and his government have been instrumental in committing there and elsewhere beyond the armistice lines since his first term in office. Israel is a party to the armistice agreements that were concluded under the auspices of Article 40, Chapter 7 of the UN Charter. See UN SC resolutions 62 and 73. The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations says: “Every State likewise has the duty to refrain from the threat or use of force to violate international lines of demarcation, such as armistice lines, established by or pursuant to an international agreement to which it is a party or which it is otherwise bound to respect.”

    It is no secret that the 10th Emergency Special Session of the UN General Assembly was convened to take up that same Har Homa settlement as a situation of on-going concern to the international community of states. They called for a Reconvened Conference of the High Contracting Parties to the Geneva Conventions and obtained an ICJ advisory opinion. Both of those bodies concluded, among other things, that Israel had established settlements illegally in the occupied Palestinian territory, including East Jerusalem.

    Despite the fact that the Rome Statute requires the ICC to establish a treaty relationship with the UN, there are no procedures in place that require its judicial organs to advise the Prosecutor when one of the ICC’s member states refers to an alleged violation of the Rome Statute in a formal written submission, as Jordan did in 2003.

    The situation in Palestine wasn’t dragged-in over the transom, it walked right in the front door of the ICC in 2009 when the government of Palestine accepted the Court’s jurisdiction. It isn’t the fault of Comoros or anyone else that the Prosecutors failed to properly address the situation. At the time, both the UN Human Rights Council and the General Assembly endorsed the conclusion contained in paragraph 1835 of the Goldstone report that the Prosecutor had the necessary competence to recognize Palestine as a state capable of making an Article 12(3) declaration in accordance with the rules of customary international law. In fact, the Prosecutor as a creature of an organization with its own “international legal personality,” is one of the officials who has been empowered by the state parties to conclude special agreements on the exercise of the Court’s jurisdiction with “any other state” in accordance with Articles 4 and 54(3)(d) of the Statute. In line with the customary principle and practice reflected in the ICJ “Reparations” case, all of the members of such an organization are bound to respect agreements with third parties that the organization concludes on its own behalf in the fulfillment of its functions and purposes.

    The ICC Registrar said that a “conclusive determination” on the applicability of Palestine’s Article 12(3) declaration “would have to be made by the judges at an appropriate moment.” I subsequently pointed out that the Prosecutor didn’t have the final word on the subject of Palestine’s statehood. You indicated it was a moot question, but seemed to change your mind when Eugene Kontorovich, Nimrod Karin, Robert Howse, et al suggested that it was a valid dispute that could be addressed to the Judges in accordance with Article 77(2) of the Vienna Convention and Article 119 of the Statute.

    Palestine declared its statehood in 1988 and applied for membership in both the UN and UNESCO on the basis of its original UDI. It’s latest Article 12(3) declaration reserved its right with respect to retroactivity in connection with other crimes committed on its territory. So it certainly has laid the necessary ground work for its own request under Article 119 on the validity of its disputed Article 12(3) declaration. The General Assembly explicitly acknowledged the role played by the PLO Executive Committee acting as the Provisional Government of the State of Palestine since November of 1988 in its November 2012 resolution on the status of Palestine in the United Nations. No one can prevent Palestine from filing a declaration accepting the compulsory jurisdiction of the ICJ for the purposes of the Genocide Convention retroactive to that date. In fact, those declarations are customarily considered to be retroactive in effect, unless there is a reservation to the contrary.

    So, I think you have it exactly backwards. It has always been the Office of the Prosecutor who deliberately cobbled-together a sophomoric rule of treaty interpretation and tried to sneak it in the back door, despite the fact that it flagrantly contradicts the stated policy and position of the General Assembly; the stated policy and position of the UN Secretary General; the explicit terms of the Vienna Convention on the Law of Treaties regarding the rights of UN specialized agency members; and the customary peremptory norm (jus cogens) of self-determination. The latter is incorporated by reference in the Statute itself under the auspices of the contents of the “Applicable Law” subsection and the “Definition of the Crime of Aggression” criteria outlined in “United Nations General Assembly Resolution 3314 (XXIX)” that was adopted as part of the Kampala amendments. Despite her protests to the contrary, the OTP did employ it own “status at the UN” jargon in order to avoid opening a proper investigation of crimes committed on Palestinian territory since 2002. those have included the ones contained in the correspondence of the 10th Emergency Special Session of the General Assembly, the ICJ’s findings in the Wall advisory opinion, and those committed by both sides during Operations Cast Lead, Pillar of Defense, and Protective Edge.

    Comoros and Palestine are both full member states of the Arab League. They brought-in incontrovertible evidence of their multilateral treaty relationships when they had the Secretary of the League present an official exhibit to the Office of the Prosecutor back in 2009 regarding the status of Palestine. After the State of Palestine filed an Article 12(3) Declaration with the Court and an application for full membership with the UN, the UNESCO board of governors simply decided to finally take action on a pending application for full membership that it had originally received from the government of the State of Palestine in 1989. See the text of “Admission of Palestine as member of UNESCO – Resolution (29 October 2011)” @ UNISPAL The moment that Palestine became a member of UNESCO, the Secretary General had an affirmative obligation under the terms of General Assembly Resolution 368 (IV) 1950 to dispatch a letter of invitation to Palestine to become a state party to the UN Genocide Convention. Likewise, he had a binding treaty obligation to accept deposits from the State of Palestine for all of the so-called UN “Vienna Conventions,” including the Law of Treaties, on behalf of the “international community of States” as a whole (see Article 52 VCLT). They included standing instructions for the Secretary General to accept signatures, ratifications, and accessions to that treaty from all members of UN specialized agencies in Articles 81-83 of the VCLT. So it’s unlikely in the extreme that the Judges of the ICC would find that the Secretary erred in performing his duties as a despositary.

    The General Assembly itself had repeatedly adopted resolutions which acknowledged or recalled that the 1988 unilateral declaration of the State of Palestine was a step taken “in the exercise of the inalienable right of self-determination” and that Palestinian statehood was “not subject to any veto or to the peace process” (resolution 55/87, 21 February 2001). It had also adopted numerous resolutions regarding the fact that the League of Arab States had “recognized” the permanent observer mission of the PLO as that of another existing state whose origins could be traced to the Treaty of Lausanne and the Covenant of the League of Nations. It encouraged all UN member states to sign, ratify, or deposit accessions to the “Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character” so that their own relations with the PLO mission, and that of any international organizations hosted in their countries, could be “governed” in accordance with its rules. It explicitly noted that they “only apply to states”. Article 8 of that Convention defined the term of art “permanent observer mission” as one that applied to “missions from States”. So the General Assembly’s position has always been clear, i.e. that international organizations of a universal character, like the ICC, should treat Palestine as a state. See the texts of: The Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character and the series of resolutions titled “Observer status of national liberation movements recognized by the Organization of African Unity and/or by the League of Arab States”: General Assembly resolutions 35/167 of 15 December 1980, 37/104 of 16 December 1982, 39/76 of 13 December 1984, 41/71 of 3 December 1986, 43/160 of 9 December 1988, 45/37 of 28 November 1990 and 47/29 of 25 November 1992.

    The note on the use of the term “state” in the General Assembly’s definition of aggression and its application to the situation in the occupied Arab territories is also an established part of the practice of the General Assembly.

    I’ve mentioned in the past that the General Assembly noted Palestine’s full membership in the League in its 1998 resolution on Palestine’s observer status. Those Arab League multilateral treaties predate the entry into force of the Rome Statute and deal with a variety of subjects, including diplomatic immunity and extradition. Under customary law, the Rome Statute can’t create rights or obligations for the 18 other third party Arab League states without their consent. The Statute itself stipulates that the Court’s procedures for “surrender” cannot be “more burdensome” for them than the procedures for “extradition” contained in those and similar agreements with the Organization of the Islamic Conference member States. The Statute contains provisions that will require the Court to recognize those international agreements and work with third party states under the terms of Article 98 should the need ever arise.

    I doubt that it was the intention of the authors of article 98 to create a loophole for the ordinary customary rule concerning head of state immunity to preempt their erga omnes responsibilities regarding the jus cogens prohibition of genocide as Asad Kiyani has suggested, since that would only have rendered their attempt and the Rome Statute itself null and void in accordance with the Article 52 of the VCLT.

  17. If there was bias, was it not on the part of the PTC in deciding against prosecuting an egregious outrage, presumably because some nations are not to be touched?

    Unless justice touches everyone, can it be justice?

  18. By the way, Jackdaw says “Live fire was coming from the ship and directed at the commandos, to make matters worse.”

    I am reminded of the notice in a zoo: “These animals are dangerous – if attacked they defend themselves.”

    Isn’t that what the ICC will find: who attacked and who defended?

  19. Mr Kevin Jon Heller, with all your expertise….you have no response all.. to any of Hostage’s comments, not even partial??? Wow! Well, I know what that tells me. All I can say is a big thank you to Hostage.

  20. Re: Mr Kevin Jon Heller, with all your expertise …

    Dr. J, I started reading and commenting at Opinio Juris primarily because of the great job that I think Kevin Jon Heller and his fellow bloggers do here. He and I have already discussed some of the issues I mentioned above here at OJ in the past. I’ve usually just posted comments in piecemeal fashion in response to some particular point raised in an article or comment made by someone else. This time, I thought it would be helpful to present a fuller more organized overview of the jurisdictional debate from the Palestinian or Comoros perspective on the situation.

    I personally think that the points at issue are subtle differences of opinion and possible ways of examining the overall situation, not a major disagreement.

  21. Hostage, thank you for that clarification. I respect that you took the time to explain, for my sake as well as other readers. It was indeed my irresponsibility and ignorance to react to the first article of Mr. Heller I’ve ever read and judge him the way I did. I am genuinely sorry, I do know better than that.

    That said, the issues, points and differences of opinion you speak of have far reaching, large scale ramifications especially for the Palestinians, but also the region and entire world. I’m sure you realize more than I how huge such subtleties actually are. Needn’t be said that it matters when dealing with the most pivotal topic of peace in the world…that wars, death, destruction can result.

    I still think Mr. Heller, from a professional point of view, owes his readers a response to your comments. No response is not a resolution, and it leaves deeply caring readers dangling.

  22. Dr J,

    It’s nearly 1:00 am in Melbourne, where I’m currently located, so I will post a substantive response to Hostage in the morning. In general, though, Hostage and I agree about the status of Palestine; when we disagree, it’s almost always over ICC procedure.

  23. Mr. Heller, I am thankful in advance for your response to Hostage, and for addressing my concerns. Again, such disagreements over ‘ICC Procedure’ have major impact for Palestinians and the world. My profession is not law, nonetheless, I don’t see any ‘politics’ in the opinions expressed in Hostage’s comments regarding such procedures, rather I see interpretation of law with a high order of legal competence, knowledge, insight, understanding and thoroughness of detail. If your argument that the PTC decision is dangerous fundamentally because it involves politics over law, I don’t understand. So I very much look forward to reading your response.

  24. Just to accomplish my dish of my comment above , have forgotten to insert additional provisions for the stated therein , so here :

    ” Article 83 — Dissemination

    1. The High Contracting Parties undertake, in time of peace as in time of armed conflict, to disseminate the Conventions and this Protocol as widely as possible in their respective countries and, in particular, to include the study thereof in their programmes of military instruction and to encourage the study thereof by the civilian population, so that those instruments may become known to the armed forces and to the civilian population.
    2. Any military or civilian authorities who, in time of armed conflict, assume responsibilities in respect of the application of the Conventions and this Protocol shall be fully acquainted with the text thereof. ” ( Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 )

    So , one should read the whole above , with article 21 ( applicable law ) of the Rome statute , dictating so :

    ” 1. The Court shall apply:

    (a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence;

    (b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict;

    And reach clear conclusion , that : controlling , should comprise also : teaching and educating ( per se so , by definition so , but just for presenting the appropriate legal basis ) .


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