The Comoros Declination — and Remarkable Footnote 20

As readers are no doubt aware, the OTP has once again declined — now for a third time — to open an investigation into Israel’s violent attack on the MV Mavi Marmara. That decision was wholly expected; the only question was how the OTP would deal with the Appeals Chamber’s recent decision in the Comoros situation, in which the Chamber made clear that the OTP, when reconsidering its decision not to open the investigation, was bound by the Pre-Trial Chamber’s legal interpretation of the relevant factors in Art. 53(3)(a) of the Rome Statute.

As compiled by the OTP, that interpretation consists of five basic points concerning the gravity calculation required by Arts. 17 and 53:

“If the information available to the Prosecution […] 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”.

“[T]he Court has the authority to consider all necessary information, including as concerns extra-jurisdictional facts for the purpose of establishing crimes within its competence as well as their gravity.”

“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)”.

“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.”

“[I]t is inconsistent with the wording of article 53(1) of the Statute and with the object and purpose of the Prosecutor’s assessment under this provision for her to disregard available information other than when that information is manifestly false.”

The second and third points are unobjectionable. The first seems bad, but actually just restates Art. 53(1). The admissibility analysis in Art. 17 requires the case in question to be sufficiently grave, so the first point doesn’t substantively affect the key issue in the Comoros dispute, which is precisely how the OTP should assess the gravity of a particular case.

The fourth and fifth points, however, are wrong and dangerous. Taken seriously, they will essentially force the OTP to investigate every situation within the Court’s jurisdiction that is referred to it. It will be the extraordinary situation indeed where there are no conflicting accounts of serious crimes and where the OTP can confidently dismiss all incriminating facts as manifestly false.

As I said, I had no doubt that the OTP would refuse for a third time to open the Comoros investigation. But I was very interested to see how the PTC would deal with the five Pre-Trial Chamber points — particularly the fourth and fifth.

I don’t want to get too deep into the guts of the OTP’s analysis in this post, so let me just offer two observations. The first is that, although I agree with its ultimate conclusion, the OTP quite thoroughly whitewashes the attack on the MV Mavi Marmara, consistently either adopting Israel’s preferred version of the facts or assigning very little weight to facts that could have increased the gravity of the IDF’s crimes (as it was entitled to do, following the Appeals Chamber’s instructions). The second is that, viewed instrumentally, the OTP’s submission nevertheless manages to clearly, patiently, and plausibly explain why, even accepting all five of the Pre-Trial Chamber’s points, the Comoros situation is still not sufficiently grave to investigate.

There is no question, however, that the Pre-Trial Chamber’s problematic interpretation of gravity could easily come back to haunt the OTP in future situations that are broader than Comoros. That danger put the OTP in a tricky position in the Comoros litigation. On the one hand, it had to apply the Pre-Trial Chamber’s interpretation of gravity, per the Appeals Chamber’s decision. But on the other hand, it had to find some way to avoid uncritically accepting that interpretation.

The OTP’s solution? Footnote 20, which I quote in relevant part:

While the Prosecution has duly accepted these legal interpretations of the majority of the Pre-Trial Chamber in the First Article 53(3)(a) Request for the purpose of this situation, it notes that this remains without prejudice to its approach in other situations. This important distinction follows from the fact that one Pre-Trial Chamber is not bound to adopt the legal reasoning of another Pre-Trial Chamber, and that consequently the parties to proceedings before such chambers may in appropriate circumstances properly submit that this is the proper course of action. See Statute, art. 21(2).

Footnote 20 is both legally correct and exceptionally clever. In one short paragraph, the OTP manages to achieve three important and interrelated objectives. First, it serves notice that it has no intention of applying the Pre-Trial Chamber’s interpretation of gravity in future situations. Second, it reminds future Pre-Trial Chambers that they are free to adopt different interpretations of gravity. And third, it makes clear that the OTP will contest any attempt by a future Pre-Trial Chamber to adopt the Comoros interpretation.

I am confident that the the OTP’s submission will be the final word in the Comoros litigation. But I fear Comoros is merely the first skirmish in what will be a much longer battle between the OTP and the judges in the Pre-Trial Chamber over who gets to define gravity.