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.