Al-Haq welcomes the recent decision of the Appeals Chamber of the International Criminal Court (“ICC”) to direct the Prosecutor of the ICC to reconsider her earlier decision not to investigate the May 2010 raid of the Mavi Marmara. 

On 31 May 2010, the Mavi Marmara, a passenger vessel, which was part of the Humanitarian Aid Flotilla bound for the Gaza Strip, was targeted in international waters and raided by the Israeli Occupying Forces (IOF), who attacked and killed ten civilians travelling on board, acts which may amount to war crimes.[1]On May 2013, the Union of Comoros, under whose flag the Mavi Marmarasailed, referred the attack to the Prosecutor of the ICC.[2]Regrettably, however, the Prosecutor declined to open an investigation in November 2014, arguing that while “there is a reasonable basis to believe that war crimes were committed by some members of the Israel Defence Forces… no potential case arising from this situation can, legally speaking, be considered of ‘sufficient gravity’…therefore barring the opening of an investigation”.[3]The Prosecutor further argued that “there was no reasonable basis to believe that the identified crimes were committed on a large scale or as part of a plan or policy”.[4]

On 16July 2015, the Pre-Trial Chamber I of the ICC (“PTC”) requested that the Prosecutor reconsider her decision which they held erred on a number of grounds: she had failed to consider that the persons likely to be the object of the investigation into the situation could include those who bear the greatest responsibility for the identified crimes; she had failed to appreciate the scale of the crimes in the gravity assessment; she had erred in correctly appreciating the nature of the identified crimes; she failed to properly assess the systematic nature of the plan to attack, kill, or injure civilians; and that she had erred in assessing the impact of the crimes.[5]

Two years later, on 30 November 2017, the Prosecutor, in a decision she described as “final”, reaffirmed her initial decision not to investigate, challenging the legal reasoning of the PTC, although reiterating her earlier view that “there is a reasonable basis to believe that war crimes were committed by some members of the Israel Defence Forces during and after the boarding of the Mavi Marmara”.[6]

Following this, the PTC once again disputed the Prosecutor’s decision, ordering her to reconsider in specific reference to the errors identified in its 2015 decision, declaring that these “must serve as the basis for the reconsideration of her 6 November 2014 Decision. In other words, the Prosecutor must demonstrate in detail how she has assessed the relevant facts in light of the specific directions contained in the 16 July 2015 Decision.”[7]The Chamber further noted that preliminary examinations must be concluded within a reasonable amount of time, whereas the Prosecutor had taken two years to reach her decision in this case. The PTC regarded this as “irreconcilable with the Prosecutor’s duty to reconsider her decision ‘as soon as possible’, as prescribed by rule 108(2) of the Rules [of Procedure and Evidence]”.[8]

On 2 September 2019, the Appeals Chamber upheld the PTC’s order. The Chamber held that the PTC has a statutory power to review decisions which the Prosecutor considers to be “final”, and that Article 53(3)(a) of the Rome Statute and Rule 108(3) of the Rules of Procedure and Evidence do not defeat this power.[9]The Chamber further observed that the Prosecutor must reconsider her decision not to investigate, when the PTC decision is based on its authoritative interpretation of relevant law. Accordingly, the Prosecutor failed on this account.[10]Further, while the PTC may not direct the Prosecutor as to how information is to be analysed, she must follow its directions to consider certain information.[11]

Al-Haq urges the Prosecutor to fully investigate the events of the Mavi Marmaraincident on 31 May 2010. Further, Al-Haq calls on the Prosecutor to open without further undue delay, an investigation into the Situation in Palestine, in light of continued Israeli impunity for international crimes against the Palestinian people.[12]Al-Haq has previously implored the Prosecutor to open an investigation into the situation in Palestine following the opening of a preliminary examination nearly five years ago,[13]twice as long as the two-year time period criticised by the PTC in its 2018 decision. In doing so, the Prosecutor has previously received from Al-Haq a 700-page communication chronicling a systematic and prolonged campaign of persecution and apartheid perpetrated by Israel, the Occupying Power.[14]