31 May 2020 marks the tenth anniversary of Israel’s attack on the Free Gaza Flotilla in the Mediterranean. The Free Gaza Flotilla, comprising a civilian humanitarian aid convoy, had been organised in solidarity with Palestinians in Gaza to challenge Israel’s unlawful closure restrictions on the Gaza Strip. That night, among the crew and passengers, ten people were killed, some 50 injured, and many more subject to abuse and ill treatment during Israel’s military raid on the flotilla. A decade on, and the unlawful closure of the Gaza Strip persists, the intervening period having witnessed repeated and massive violations of Palestinian human rights by Israel’s attacks on the people of Gaza, which have rendered the territory uninhabitable. No State has proceeded beyond the preliminary stage of investigating the crimes perpetrated during the raid. Israel has not undertaken proper investigations into its soldiers’ conduct. An Israeli inquiry into the incident, published in January 2011 and known as the Turkel Report, was condemned by Amnesty International as ‘no more than a whitewash’. The International Criminal Court (ICC) remains the only viable course to justice, as the Court of last resort. No one has been held accountable for the war crimes and human rights violations perpetrated during and after the raid.

On the occasion of this anniversary, the following note seeks to outline and to summarise the complex and prolonged proceedings that have been underway before the Court since 2013.

1. State Referral by the Government of the Union of the Comoros

In May 2013, the Government of the Union of the Comoros referred to the Office of the Prosecutor of the International Criminal Court, the situation ‘with respect to the 31 May 2010 Israeli raid on the Humanitarian Aid Flotilla bound for [the] Gaza strip’. The Prosecutor promptly announced the opening of a preliminary examination into The Situation on Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia.

The Prosecutor closed the preliminary examination in November 2014. Although concluding that there was a ‘reasonable basis to believe’ that Israeli forces had committed war crimes during the interception of the flotilla, the decision was made not to proceed with a formal investigation on the basis that ‘the potential case(s) that would likely arise from an investigation of the flotilla incident would not be of sufficient gravity to justify further action by the Court’.

As of May 2020, the correctness or appropriateness of this decision remains contested and unresolved, and proceedings continue before the Court. The decisions of the various Chambers have been characterised by repeated divergences of opinion, as to facts and as to law, amongst the judges, and for observers of the Court the process has been viewed largely as the playingout of institutional power struggles between the Court’s various organs -  an unresolved process also visible in the Situation in Afghanistan. 

2. Pre Trial Chamber Decision

In January 2015, the Comoros submitted an Application to the Pre-Trial Chamber asking it to review the Prosecution’s decision not to open an investigation. On 16 July 2015, in a majority decision Pre-Trial Chamber I, requested the Prosecutor to ‘reconsider the decision not to initiate an investigation into the situation referred to her by the Union of Comoros’. The Chamber identified five errors in the Prosecutor’s findings that the potential case(s) arising from the situation would not be of sufficient gravity to justify further action by the Court, namely:

1. the Prosecutor’s failure 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; 
2. the Prosecutor’s error as to how the scale of the identified crimes can be taken into account for the assessment of the gravity of the identified crimes; 
3. the Prosecutor’s error in correctly appreciating the nature of the identified crimes; 
4. the Prosecutor’s error in fact in properly assessing the manner of commission of the identified crimes, in particular with respect to the question whether the identified crimes may have been ‘systematic or resulted from a deliberate plan or policy to attack, kill or injure civilians’; and 
5. the Prosecutor’s error in determining the impact of the identified crimes.[1]

On Point IV, as to the propriety of the Prosecutor’s analysis of the manner of commission of the identified crimes, the Pre-Trial Chamber identified the following errors of fact: 

• the Prosecutor did not correctly assess the information that live fire was used by the IDF prior to the boarding of the Mavi Marmara; 
• the Prosecutor unreasonably failed to consider that the fact that the detained passengers suffered cruel and abusive treatment in Israel reasonably suggests that the identified crimes may not have occurred as individual excesses of IDF soldiers; 
• the Prosecutor unreasonably failed to recognise the fact that the unnecessarily cruel treatment of passengers on the Mavi Marmara, the attempts of the perpetrators of the identified crimes to conceal the crimes, and the fact that the events did not unfold on other vessels in the flotilla in the same way as they did on the Mavi Marmara, are not incompatible with the hypothesis that the identified crimes were planned.[2]

As to the question of weighing the overall ‘gravity’, or seriousness of the situation, the Chamber noted that:

“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.”[3]

The Chamber was also critical of how, ‘In the Decision Not to Investigate’, the Prosecutor considered the impact of the identified crimes as a factor militating against the conclusion that the potential case would be of sufficient gravity: ‘The underlying consideration was that the identified crimes, while having “a significant impact on victims and their families and other passengers involved”, did not have “a significant impact on the civilian population in Gaza”.[4] In holding the Prosecutor’s approach to this issue to be ‘flawed’, the Chamber was of the view that the Prosecutor should have recognised the possibility that the events at issue had an impact going beyond the suffering of the direct and indirect victims: 

“Indeed, as submitted by the Comoros, the commission of the identified crimes on the Mavi Marmara, which were highly publicised, would have sent a clear and strong message to the people in Gaza (and beyond) that the blockade of Gaza was in full force and that even the delivery of humanitarian aid would be controlled and supervised by the Israeli authorities. Also, the international concern caused by the events at issue, which, inter alia, resulted in several fact-finding missions, including by the UN Human Rights Council and the UN Secretary General, is somehow at odds with the Prosecutor’s simplistic conclusion that the impact of the identified crimes points towards the insufficient gravity of the potential case(s) on the mere grounds that the supplies carried by the vessels in the flotilla were ultimately later distributed to the population in Gaza.”[5]

This decision of the Pre-Trial Chamber set in motion a prolonged, and as of yet, inconclusive, set of exchanges between the Office of the Prosecutor, the Pre-Trial Chamber, and the Appeals Chamber with the further participation of the Office of Public Counsel for Victims, State Representatives, and the Legal Representatives of Victims. On 29 November 2017, the Pre-Trial Chamber received the ‘Final decision of the Prosecution’. There, the Prosecutor’s Office reasserted its position, that it ‘remains of the view that there is no reasonable basis to proceed with an investigation under article 53(1) of the Statute’ and that, as such ‘an investigation may not be initiated, and the preliminary examination must be closed’.

3. Judicial Review Application

In February 2018, the Government of the Comoros submitted its second application for judicial review, requesting the Chamber to review the Office of the Prosecutor’s First Reconsideration Decision. In November 2018, Pre-Trial Chamber I issued its decision on the judicial review application, finding that the Prosecutor was bound to comply with the 16 July 2015 decision, and reiterating that the Chamber retains jurisdiction to review the Prosecutor’s reconsideration until the Prosecutor has genuinely complied with the Chamber’s decision. 

The Chamber was critical of the Prosecutor’s two-year delay in responding to the July 2015 decision to reconsider the November 2014 closure of the preliminary examination, and held that the November 2017 decision: ‘wilfully refrains from complying with the 16 July 2015 Decision.’[6] On that basis, the Chamber requested that the Prosecutor reconsider again her decision not to investigate.

The Prosecutor appealed this finding, but in September 2019 the Appeals Chamber confirmed the decision of the Pre-Trial Chamber, and ordered the Prosecutor to reconsider her decision not to investigate in accordance with the Pre-Trial Chamber’s decision of 16 July 2015. The Appeals Chamber held that the Prosecutor is bound by the Pre-Trial Chamber’s interpretation of the law, but that the Prosecutor is not obliged to follow the instructions of the Chamber on issues of factual findings and gravity assessments.

On 2 December 2019, the Prosecutor issued a second reconsideration determination, maintaining the position that the evidence does not support a finding that there is a ‘reasonable basis to believe’ that there is sufficient gravity for the case to continue before the ICC. One of the issues which distinguished the gravity of conduct in question related to the status of the passengers on the flotilla. The 2015 order for reconsideration had, as noted, highlighted certain comparative cases which the Prosecutor had prosecuted in the Situation in Sudan ‘e.g. the cases against Bahar Idriss Abu Garda and Abdallah Banda’, in which the number of direct and indirect victims were of a similar range as the flotilla case at hand. However, the Prosecutor’s reasoning distinguishesthese cases from the flotilla on the basis that the targets of attack in the Situation in Sudan had been peacekeepers, imbued with an officially sanctioned humanitarian status, whereas: ‘By contrast, the victims of the identified crimes aboard the Mavi Marmara were neither peacekeepers nor humanitarian assistance workers within the meaning of article 8(2)(b)(iii) of the Statute, insofar as the Prosecution has previously found that their mission was motivated by “explicit and primary political objectives” rather than being “impartial[]” or “neutral[]”.’[7]

Responding to the Pre-Trial Chamber’s 2015 concern that the gravity of the situation required weighing, and consideration of the impact by which the Israeli raid ‘would have sent a clear and strong message to the people in Gaza (and beyond) that the blockade of Gaza was in full force’, the Office of the Prosecutor reserved to itself the significance to be attached to such a consideration.[8] Finding once again that the incidents failed to meet the gravity assessment in light of the margin of appreciation accorded, the Prosecutor concluded: ‘Accordingly, the Prosecution gives this consideration minimum weight in its assessment of the gravity of the potential case(s) arising from this situation, since the effect of such a “message” cannot be assessed with any degree of reliability.’[9]

Of central dispute between the parties, has been gauging the existence or otherwise as to the policy to commit crimes, and the weight to be attached to such a matter. Here it is useful to draw attention to the Prosecutor’s distinction between conduct at sea and on the vessels, and conduct in Israel, where the flotilla passengers were brought by the Israeli navy. Having noted allegations of ill treatment, the Prosecutor emphasises that it has no information as to whether “‘military or other superiors’ acquiesced in the alleged abuse on Israeli territory’, nor as to whether “those [superiors] were the same persons responsible for the IDF troops which undertook the boarding operation” on the Mavi Marmara.’[10] Here the Prosecutor contends that: 

‘While there is a continuum between the victims of the alleged conduct, the link between the groups of alleged perpetrators is tenuous—they are united only by their nationality, their service to the Israeli government, and the allegations that some persons in these groups mistreated detainees. The conduct of such unrelated groups has very little or no probative value in showing a reasonable basis to believe that there was a plan or policy to commit crimes aboard the Mavi Marmara.’[11]

In March 2020, the Comoros again submitted a judicial review request to the Pre-Trial Chamber, claiming the existence of ‘compelling and cogent grounds for the Chamber to require the Prosecutor to reconsider her latest decision not to open an investigation’. Among the steps requested are that ‘errors of fact must be addressed and rectified in the same way as errors of law’, but also the unusual request, and one which demonstrates the frustrations which the process has aggravated, that ‘sanctions’ be imposed on the Office of the Prosecutor, and that ‘an amicus prosecutor’ be appointed so as to reconsider the decision not to investigate. 

On 11 May 2020, the Prosecutor responded to the request for judicial review: ‘While the Prosecution respectfully disagrees with the Comoros and the participating victims on the merits of this request, and for this reason submits that it should be dismissed, it nonetheless concurs that the protracted litigation in this situation should be brought to an end. The Comoros’ request for further forms of relief, joined by the victims, should in any event be dismissed.’

On 26 May 2020, Comoros stated that the Prosecutor’s response ‘amounts to a deliberate circumvention of the Pre-Trial Chamber’s decision and the clear directions of both the Pre-Trial Chamber and Appeals Chamber to correct the errors in the OTP’s decisions, which renders the entire judicial review procedure meaningless.’ Comoros further states that where the Prosecutor ‘even goes so far as to suggest that its decision in the present Situation should not be questioned because the Prosecutor has stated that she wishes to open an investigation in the Palestine Situation’, the consequence should not be seen as an argument in favour of closing down the Flotilla investigation, but ‘It is in fact a compelling reason to initiate an investigation in the present case particularly given that it is directly related to the situation in Gaza and Palestine.’ 

As to the identity of the perpetrators, Comoros criticises the Prosecutor’s limiting ‘the object of any investigation to “physical perpetrators” and not senior officials and leaders as potential perpetrators because it believed there was no evidence to support a conclusion that more senior officials in the Israeli Government or Military might be responsible for the crimes’. Drawing on the Turkel Report process, Comoros argues that senior Israeli politicians and military leaders had been involved at all levels of the operation: ‘The public testimony before the Turkel Commission further includes evidence from Prime Minister, Benjamin Netanyahu about his assignment of senior leadership to oversee the military operation and respond to the Flotilla, and of the IDF Chief of Staff at the time of the attack, Gabi Ashkenazi. The Commission’s findings also made clear… that the Commander of the Israeli Navy was present at the scene of the attack.’

Conclusion

In its November 2018 decision, the Pre-Trial Chamber expressed concern at the negative consequences which prolonged preliminary examinations have on the human rights of the victims: ‘Extended preliminary examinations affect the rights of victims and maintain them in a state of uncertainty which is prejudicial.’[12] The aim of the flotilla had been to exercise solidarity with the Palestinians of Gaza by defying Israel’s unlawful closure regime. The closure persists, without any sign of Israel adapting its policies so as to align itself to international human rights and international humanitarian law norms. The Situation in Palestine, also under preliminary examination since 2015, following the suspended preliminary examination process of 2009-12, is now closed by the Prosecutor, but we remain to see the opening of a formal investigation, and are seeing further delays to the process.

Impunity for the perpetration of crimes, against the flotilla and against Palestinians more broadly, risks becoming a mere feature of the international justice system. It remains imperative that such a reality be identified, challenged, and overcome and that the Situation in Palestine as well as the Situation on the Registered Vessels of the Union of the Comoros, The Hellenic Republic, and The Kingdom of Cambodia, urgently proceeds to investigation.