Some Concerns with the Pre-Trial Chamber’s Second Decision in Relation to the Mavi Marmara Incident

On 15 November 2018, Pre-Trial Chamber I of the International Criminal Court (ICC) issued a decision in response to an application by The Comoros seeking judicial review of the Prosecutor’s ‘final decision’ not to proceed with the investigation of the Situation on the Registered Vessels of the Union of The Comoros, The Hellenic Republic of Greece and Cambodia (Mavi Marmara incident). This decision is the most recent in a string of proceedings since The Comoros first referred the situation to the Court in 2013. In brief: following the publication of the Prosecutor’s 2014 report declining to initiate an investigation on grounds of insufficient gravity, The Comoros sought review under Article 53(3)(a) of the Rome Statute. The Pre-Trial Chamber’s 2015 decision found several errors in the Prosecutor’s application of gravity and requested her to reconsider her decision not to investigate. In response, the Prosecutor sought to appeal the decision under Article 82(1)(a) by characterising it as one pertaining to admissibility. The appeal was dismissed in limine on the ground that the Pre-Trial Chamber had not ruled on the admissibility of the situation; ‘the final decision in this regard being reserved for the Prosecutor’ (para 64).

When in 2017 the Prosecutor published her ‘final decision’ detailing the reasons for her decision (upon reconsideration) not to investigate, The Comoros sought a second review under Article 53(3)(a) and the decision of the Pre-Trial Chamber this November was issued in response. The decision relies on the finding that the Pre-Trial Chamber’s 2015 decision constituted a ‘final judicial decision’ (para 96). From this, the Court draws the following consequences: (1) that the Prosecutor is obliged to comply with its 2015 decision, (2) that the 2015 decision must constitute the basis for the Prosecutor’s reconsideration, and (3) that the Prosecutor’s ‘final decision’ – by failing to do so – is not final at all. These proceedings have tested the limits of prosecutorial discretion in the initiation of investigations under Article 53(1) of the Rome Statute, and it is in this context that this post identifies three problematic aspects of the Pre-Trial Chamber’s decision.

Establishing the Pre-Trial Chamber’s Jurisdiction  

While convincingly explaining why the Prosecutor was obliged to consider the Pre-Trial Chamber’s 2015 decision in reconsidering her initial determination, the Court does not first establish its own jurisdiction to consider The Comoros’ second request under Article 53(3)(a). Given the parties’ own attempts to clarify the issue, this omission is particularly conspicuous. The Comoros argued that since the Prosecutor’s reconsideration decision was, like her initial decision, based on the criteria in Article 53(1) (and not necessarily limited to considerations of gravity), it was subject to judicial review in Article 53(3)(a). In its view, this interpretation was in line with the objective of securing for referring states a right to seek review of prosecutorial decisions not to proceed with the situations referred by them. The Prosecutor, for her part, limited her submissions to the contention that the Court lacked jurisdiction. She did so by drawing a careful distinction between her first decision under Article 53(1), which was subject to judicial review in Article 53(3)(a), and her ‘final decision’ under Rule 108(3) of the Rules of Procedure and Evidence, which was not. She also reiterated the Appeals Chamber’s observations that the decision ultimately lay with her. Omitting to address these assertions, the Pre-Trial Chamber seemed to consider that the key issue was not establishing a basis for its exercise of judicial review, but rather:

‘whether the Prosecutor is under an obligation to abide by the 16 July 2015 Decision or whether she is free to disregard it and adopt another basis for her reconsideration in the exercise of her discretion.’ (para 87)

The only extent to which the decision offers any indication with respect to the jurisdiction of the Pre-Trial Chamber is in concluding that the Pre-Trial Chamber ‘retains jurisdiction to ensure that the Prosecutor complies with the 16 July 2015 decision’ (para 95) and that ‘the Pre-Trial Chamber’s oversight role under article 53(3)(a) of the Statute continues to be in effect’ (para 116). The Court also turns briefly to the Prosecutor’s obligation of notification under Rule 108(3). It is thus ostensibly the case that the Pre-Trial Chamber exercised its jurisdiction under Article 53(3)(a).

What is problematic about the Pre-Trial Chamber’s failure to clearly establish its jurisdiction to render the decision is that it leaves open the possibility of infinite cycles of review under Article 53(3), at the request of a referring state or otherwise. Even if the Pre-Trial Chamber exceptionally reserved its jurisdiction based on the fact that the Prosecutor had not complied with its 2015 decision, its jurisdiction would logically be based on an extensive interpretation of Article 53(3)(a) in relation to The Comoros’ first request under that provision, made in 2015. Had the Court clarified this point, there would be no doubt that it did not, in rendering the decision, confer upon referring entities a right to seek more than one review under Article 53(3)(a).

The Standard of Judicial Review

The underlying source of the tension between prosecutorial discretion and judicial oversight in the proceedings is one that is not discussed in the decision: gravity. In her initial determination in 2014, the Prosecutor found that neither the threshold of ‘sufficient gravity’ in Article 17(1)(d) nor the suggested gravity requirement built into the definition of war crimes in Article 8(1) had been satisfied. While it is certainly true, as the Pre-Trial Chamber meticulously explains in its latest decision, that the Prosecutor is obliged to reconsider her initial decision based on the Pre-Trial Chamber’s review, the standard of review applied by the Pre-Trial Chamber in its 2015 decision makes it virtually impossible for the Prosecutor to disagree with the Court (see Kevin Jon Heller’s analysis of the 2015 decision here). To clarify, the Pre-Trial Chamber’s conclusion that the Prosecutor’s reconsideration must have been based on its 2015 decision is not in itself problematic. However, the high standard of review it applied in 2015 makes it extremely difficult for the Prosecutor, in reapplying the gravity threshold, to justify any deviation from the Pre-Trial Chamber’s own findings, which were as follows.

The Pre-Trial Chamber’s 2015 decision began by asserting that Article 53(1)(b) imposed ‘exacting legal requirements’ on the Prosecutor (para 14). Contradicting its initial declaration that it would not review the Prosecutor’s decision ex novo, the Court examined in detail the manner in which the Prosecutor applied the gravity criteria, before either arriving at its own findings or concluding that indeterminacy warranted a decision in favour of investigation. The majority of the Pre-Trial Chamber thus disagreed with the Prosecutor’s assessments of the scale, nature and impact of crimes, as well as the status and degree of responsibility of potential perpetrators. It also found that owing to ambiguity as to the manner of commission of crimes, an investigation must be initiated. Judge Péter Kovács disagreed with this ‘full-fledged review’ (para 3), instead endorsing a more deferential standard.

To prevent the prosecution of marginal crimes and make best use of limited resources, it is the Prosecutor who must apply this threshold to determine whether to initiate an investigation into a situation. Considering the high standard of judicial review applied by the Pre-Trial Chamber in 2015, coupled with the subjectivity that is necessarily associated with the application of the gravity threshold, it is unclear how the Prosecutor will now be able to justify a decision not to investigate. The problem is well illustrated by considering the scale of the crimes committed on board the vessel. Despite agreeing on the number of victims, the Prosecutor found scale to be an indicator of insufficient gravity, while the Pre-Trial Chamber did not. The overall assessment is complicated further by the balancing of quantitative and qualitative considerations.

This degree of subjectivity, when considered with the 2018 decision’s lack of clarity as to how far the Pre-Trial Chamber’s powers in Article 53(3) extend, will make it considerably more difficult for the Prosecutor to exercise the discretion conferred upon her in determining whether to initiate investigations, at least when motivated by considerations of gravity. Even if, as the decision clarifies, the obligation is one of process and not result, the standard of review applied in 2015 circumscribes the Prosecutor’s discretion in arriving at a different result. 

The Duration of Preliminary Examinations

Finally, it is worth noting the Pre-Trial Chamber’s imposition of temporal limits on the Prosecutor in her reconsideration of the situation, and on preliminary examinations generally. In the impugned decision, the Court reiterates observations very recently made (by the same composition of judges) in a decision addressing the Prosecutor’s request for a ruling on jurisdiction over the deportation of the Rohingya people from Myanmar to Bangladesh. Noting the Prosecutor’s obligation under Rule 108(2) to reconsider her decision ‘as soon as possible’, the 2018 decision imposes a six-month deadline for doing so. Notably, the Court justifies its decision on grounds extending far beyond Rule 108(2), invoking the rights of referring entities and victims. Curtailing prosecutorial discretion in the conduct of some preliminary examinations is likely to result in the prioritisation of situations in a manner that is not necessarily effective (Stahn 2009 pp 271-2). Thus, while the absence of limits on preliminary examinations creates an obvious accountability deficit, it is important to consider the cost at which it may be secured, and whether it is possible to do so uniformly.

On 21 November 2018, the Office of the Prosecutor sought leave to appeal the decision under Article 82(1)(d). Should the Pre-Trial Chamber grant the Prosecutor’s request, it will be for the Appeals Chamber to decide whether to clarify the issues discussed above.