The Pre-Trial Chamber’s Dangerous Comoros Review Decision

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.”