Al-Haq Regrets the Pre-Trial Chamber’s Refusal to Request the Prosecutor to Reconsider her Decision in the Comoros Situation and Calls on the Prosecutor to Investigate all Alleged Crimes in Palestine

Al-Haq regrets the decision[1] of Pre-Trial Chamber I of the International Criminal Court (ICC) to not request the Prosecutor to reconsider her November 2014 decision against investigating the likely commission of war crimes, including wilful killing, wilfully causing serious injury and outrages upon personal dignity,[2] and torture[3] during the attack on the Mavi Marmara on 31 May 2010, as referred by the Union of the Comoros.[4]

The attack, launched against a civilian humanitarian aid convoy bound for the blockaded Gaza Strip in an attempt to challenge Israel’s unlawful closure, resulted in the killing of ten people, the injury of 50, and countless cases of abuse and ill-treatment, which may amount to torture.[5] In the ten years since this attack, the Comoros situation before the ICC has been the battleground for “institutional power struggles between the Court’s various organs” – namely the Office of the Prosecutor and the Chambers.[6]

As such, the question of whether the ICC would intervene has been fought over by the Prosecutor, the Pre-Trial Chamber, and the Appeals Chamber. Most recently, following a decision by the Pre-Trial Chamber, and upheld by the Appeals Chamber,[7] that the Prosecutor had wilfully refrained from complying with the Pre-Trial Chamber’s initial 2015 order to reconsider her decision in line with a number of errors identified by the Chamber,[8] the Prosecutor issued a second decision on 2 December 2019, upholding her earlier determination not to investigate.[9] This prompted the Comoros to submit a request for judicial review of this reiterated position, citing “compelling and cogent grounds for the Chamber to require the Prosecutor to reconsider her latest decision not to open an investigation.”[10]

Accordingly, the Pre-Trial Chamber, in its 15 September 2020 decision on this request, found that the Prosecutor had failed to follow the earlier directions of the Chamber, by which she was bound to follow in whole or in part, and genuinely reconsider her decision, with regards to the persons or groups likely to be the focus of the investigation,[11]the nature of the alleged crimes,[12] the impact of the alleged crimes,[13] and the manner of commission of the alleged crimes,[14] while further making new errors in her overall assessment of gravity.[15]

Nonetheless, the Pre-Trial Chamber, in this instance, sitting in a new configuration, declined to request the Prosecutor to reconsider her position once again, despite finding “that the Prosecutor has not genuinely reconsidered her decision” (emphasis in original).[16] It stated that “[f]or these reasons, the Chamber decided not to request the Prosecutor to reconsider her decision. The Chamber considers that the current jurisprudence of the Appeals Chamber does not establish with sufficient clarity the exact distribution of prerogatives between the Prosecutor and the pre-trial chamber”, while noting “with concern that in the present proceedings the Prosecutor has interpreted the Appeals Chamber’s Judgement in a manner that undermines both the Chamber’s power to direct the Prosecutor as to the correct interpretation of the law and … to take into account in the gravity assessment certain factors and/or information”.[17]

It is regrettable that once again justice for the victims of the Mavi Marmara attack has been denied, and that the war crimes likely perpetrated by the Israeli occupying forces, both during the boarding of the flotilla and afterwards, have been obscured by an institutional power struggle which serves only to continue the pervasive culture of impunity and lack of accountability for human rights violations and the commission of international crimes enjoyed by the Israeli military and civilian hierarchies.[18] Simultaneous to the Mavi Marmara proceedings, which has been plagued by delay in its seven year history before the ICC, the Situation in the State of Palestine[19] now faces similar issues. Nine months on from the Prosecutor’s request for a ruling on the territorial jurisdiction of the Court in the occupied Palestinian territory,[20] no decision has yet been issued by the Pre-Trial Chamber.

As Israeli and American pressure mounts on the ICC, including the imposition by the United States of sanctions against the Prosecutor and key members of her staff,[21] it is imperative that the Court, including the Office of the Prosecutor, continues to ensure that the pursuit of justice and accountability in Palestine is not further eroded. As such, Al-Haq restates that the the territorial jurisdiction of the Court comprises the entirety of the occupied Palestinian territory, encompassing the West Bank, including East Jerusalem, and the Gaza Strip, and urges the Office of the Prosecutor to ensure the opening of investigations into both the Mavi Marmara attack and the Situation in the State of Palestine.