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 53 Initiation 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…