In a decision dated July 16, 2015, Pre-Trial Chamber 1 (PTC) of the International Criminal Court (ICC) granted the request by Comoros to review ICC Prosecutor Fatou Bensouda’s decision to not investigate the interception of a humanitarian aid flotilla by the Israeli Defense Forces (IDF), which resulted in ten deaths and numerous injuries on May 31, 2010. In her decision dated November 6, 2014, the ICC Prosecutor had concluded that there was no “reasonable basis” for the ICC to continue with an investigation of this incident. See ICC-01/13-6-AnxA, Article 53(1) Report, 6 November 2014, para. 28. Subsequently, the PTC, upon review of the request submitted by Comoros, decided that the ICC Prosecutor had committed “material errors” in her assessment and on this basis, asked that the Prosecutor reconsider the decision to not initiate an investigation. See ICC-01/13-34, Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation, 16 July 2015, paras. 49-50.
Background on the Incident
In January 2009, Israel imposed a naval blockade off the coastline of the Gaza Strip, as part of an effort to restrict travel and the flow of goods going into and coming out of the Gaza strip. The Gaza Freedom Flotilla, organized by the Free Gaza Movement, consisting of a group of NGOs, was created in order to deliver aid to Gaza, break the Israeli blockade, and bring attention to the situation. See ICC-01/13-6-AnxA, Article 53(1) Report, 6 November 2014, paras. 10-11, 115.
On May 31, 2010, Israeli Defense Forces intercepted the Gaza Freedom Flotilla en route to the Gaza strip and took over the six ships that made up the flotilla. Id. at para 12. Before the IDF intercepted the flotilla, they had issued four warnings to the vessels, the last of which stated that “if necessary, IDF soldiers would board the vessels.” Id. at para. 105. Before boarding the ships, the IDF did not communicate a final warning about their intention to board. Id.
While the ICC Prosecutor’s report includes extensive details about the actions that occurred, the basic details include the following: on board the Mavi Marmara, one of the ships, the Israeli forces met violent resistance from the passengers when a large group attacked the IDF soldiers using, among other things, wooden clubs, iron rods, knives, chains, and their fists, which resulted in nine IDF soldiers being wounded. Id. at para. 40. The IDF soldiers then responded with varying levels of force. Ultimately, “during the course of the operation to secure control of the top and lower decks of the vessel, the IDF soldiers’ use of such lethal and nonlethal weapons against passengers of the Mavi Marmara, resulted in serious injuries to many passengers and the deaths of ultimately ten passengers.” Id. at para. 42.
In May 2013, the Comoros, a State party to the ICC, had submitted a referral to the ICC Prosecutor requesting an investigation of the 2010 flotilla incident. In a report dated November 6, 2014, the Office of the Prosecutor, at the conclusion of a preliminary investigation, concluded as follows:
the information available does not provide a reasonable basis to proceed with an investigation of the situation on the registered vessels of Comoros, Greece, and Cambodia that arose in relation to the 31 May 2010 incident. This conclusion is based on a thorough legal and factual analysis of the information available and pursuant to the requirement in Article 17(1)(d) of the Statute that cases shall be of sufficient gravity to justify further action by the Court.
See id. at para. 3.
The Office of the Prosecutor noted that while there was a “reasonable basis to believe that war crimes were committed,” nevertheless, the information did not “provide a reasonable basis to proceed with an investigation.” See id.
The decision references the UN Human Rights Council Fact-Finding Mission report, which found the IDF’s use of force on the Mavi Marmara to be “disproportionate,” demonstrating “totally unnecessary and incredible violence.” See id. at para. 108. See UN Human Rights Council, Report of the international fact-finding mission to investigate violations of international law, including international humanitarian and human rights law, resulting from the Israeli attacks on the flotilla of ships carrying humanitarian assistance, A/HRC/15/21, 27 September 2010. The decision also references the Palmer-Uribe panel report, which similarly characterized the use of force as “excessive and unreasonable.” See ICC-01/13-6-AnxA, Article 53(1) Report, 6 November 2014, at para. 108. See Report of the Secretary-General’s Panel of Inquiry on the 31 May 2010 Flotilla Incident, September 2011.
However, despite referencing these findings, the Office of the Prosecutor noted that the decision to not proceed was based on the following factors: (1) with respect to scale, the number of victims was “relatively limited,” as compared to other cases that the ICC has investigated; (2) while war crimes were committed, the treatment inflicted on the passengers did not amount to torture or inhuman treatment; (3) the alleged crimes were not systematic, nor did they result from “a deliberate plan or policy to attack, kill or injure civilians or with particular cruelty”; and (4) the interception of the flotilla did not prevent civilians in Gaza from accessing essential humanitarian supplies. The decision also noted that while the flotilla campaign is related to the humanitarian crisis of Gaza resulting from Israel’s restrictions and blockade, this issue had to be considered separately from the matter before the ICC which was limited to the issue of the gravity of the alleged crimes committed by Israeli forces on board the vessels during the flotilla’s interception. See id. at paras. 138-147.
Application for Review
Following this, in January 2015, the Comoros submitted an “Application for Review … of the Prosecutor’s Decision … not to initiate an investigation” to Pre-Trial Chamber 1. See ICC-01/13, Application for Review, 29 January 2015. The Comoros based its request for review on the following bases: first, that the Court did not take into account facts that did not occur on the vessels, but over which it nevertheless has territorial jurisdiction; and second, that errors were committed in addressing the relevant factors to determine whether a case is of “sufficient gravity” in order to justify further Court action. See id. at paras. 15, 140. In addition to the request for review that was submitted by the Comoros, the PTC also received additional submissions from the Prosecutor, the Comoros, and the victims of the incident. [ICC]
The PTC, under the authority that it has under article 53(3)(a) of the Rome Statute to review the Prosecutor’s decision not to investigate a situation and to ask the Prosecutor to reconsider such a decision, responded to the request made by the Comoros. See Rome Statute, U.N. Doc. A/CONF.183/9, 17 July 1998.
Pre-Trial Chamber Decision
Pre-Trial Chamber 1, made up of Judges Joyce Aluoch (Kenya), Cuno Tarfusser (Italy), and Péter Kovàcs (Hungary) issued its decision on July 15, 2015. [ICC] In an opinion with Judge Kovàcs partly dissenting, the PTC requested that the Prosecutor reconsider her decision not to investigate as soon as possible. See ICC-01/13-34, Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation, 16 July 2015, at para. 50.
In its decision, the PTC stated that the Prosecutor failed to consider facts occurring outside of the Comoros-registered ship. While the Prosecutor had stated that she could not consider events in Gaza as part of her assessment of the gravity of this incident, the PTC noted that the Court can consider all necessary information, including extra-jurisdictional facts, for the purposes of assessing the gravity of an alleged crime. See id. at paras. 16-17.
Next, the PTC detailed the ways in which the Prosecutor failed to properly address the various factors which determine the gravity of the situation under the Rome Statute. The PTC enumerated two considerations for determining the gravity of an alleged crime: 1) whether or not the investigation will likely include those who bear the most responsibility for the alleged crimes and 2) a quantitative and qualitative evaluation of the nature, scale, and manner of commission of the alleged crimes, in addition to their impact on the victims. See id. at para. 21.
Considering the potential perpetrators of the crime
The PTC repeated the Prosecutor’s statement that evaluating the gravity of the situation entails considering: “whether the individuals or groups of persons that are likely to be the object of an investigation, include those who may bear the greatest responsibility for the alleged crimes committed.” See id. at para. 22.
The PTC agreed with Comoros that the Prosecutor did not, and should have, analyzed whether those likely to be the object of the investigation would include those most responsible for the alleged crimes and that the Prosecutor’s failure to consider this factor impacted the decision with respect to gravity. See id. at paras. 23-24.
Scale of the crimes
The PTC noted that the Comoros and the Prosecutor agree on the number of victims identified from the May 31, 2010 incident: ten deaths, approximately 50-55 injuries, and an unknown number of persons who suffered “outrages of personal dignity or torture or inhuman treatment.” See id. at para. 26. However, while the Prosecutor concluded that this number was relatively limited compared to past investigated and prosecuted cases and therefore did not meet the standard of gravity required for the ICC to investigate, the PTC concluded that these numbers should have indicated sufficient gravity. The PTC found that the Prosecutor’s conclusion on this issue constituted a material error. See id. at para. 26.
Nature of the crimes
The PTC noted that the Prosecutor’s assessment that the mistreatment of those on board the vessel did not qualify as the war crime of torture or inhuman treatment was also a determining factor in the Prosecutor’s decision that the case was not sufficiently grave to warrant moving forward with an investigation. The Prosecutor did not dispute the information regarding the types of mistreatment involved, which included, but was not limited to: beating, denial of access to medication, using overly tight handcuffs for extended periods, intimidation (including through use of dogs), and blindfolding. See id. The PTC noted that the Prosecutor should have concluded that there was a “reasonable basis to believe that acts qualifying as torture or inhuman treatment were committed” and that this should have been considered in assessing whether the crimes were sufficiently grave to proceed with an investigation. See id at paras. 29-30.
Manner of commission
The PTC addressed various aspects of the ways in which the alleged crimes were committed, and found that the Prosecutor had erred in her conclusions. See id. at para. 31-45. The PTC also noted that “if, as stated by the Prosecutor, the events are unclear and conflicting accounts exist, this fact alone calls for an investigation rather than the opposite.” Id. at para. 36.
- Use of live fire: the PTC concluded that given the “unclear and conflicting accounts” of the IDF’s alleged use of live fire, this should have led the Prosecutor to call for an investigation, given that it suggests that the IDF forces might have intended to attack and possibly kill passengers. See id. at para. 36.
- Cruel and abusive treatment of passengers detained upon arrival in Israel: the PTC characterized the Prosecutor’s decision to not take into consideration the treatment of passengers upon their arrival in Israeli territory as unreasonable, given that sufficient information does not exist to prove that the crimes that occurred on the Mavi Marmara were merely “individual excesses of IDF soldiers,” as opposed to abuses that might have been sanctioned in some way. See id. at paras. 37-38.
- “Unnecessarily” cruel treatment of passengers during the taking of the Mavi Marmara and attempts to conceal the crimes: the PTC stated that the Prosecutor erred in not taking into account the possibility that the alleged cruelty demonstrated by the IDF soldiers could have resulted from a deliberate plan, as opposed to the action of individuals. See id. at para. 41.
- Absence of crimes on the other vessels of the flotilla: the PTC found that the Prosecutor erred in her judgment that the fact that the alleged crimes were confined to one out of seven vessels negated the possibility that the attack could have been part of a deliberate plan. See id. at paras. 42-43.
Impact of the crimes
The PTC found that the Prosecutor erred in concluding that the crimes did not have a significant impact on the civilian population in Gaza. While the Prosecutor did concede that the victims and their families were impacted, she did not believe that this indicated sufficient gravity. See id. at para. 46. The PTC on the other hand found that the harm, including physical, psychological, and emotional harm, suffered by victims and their families should not be undervalued and that whether or not the crimes had a “more general impact” was not relevant to the determination of the gravity of the situation. See id. at para. 47. The PTC also noted that even if this were a factor, the incident could indeed have had a large impact on the people of Gaza. See id. at para. 48.
The PTC concluded by requesting that the Prosecutor consider her decision not to investigate as soon as possible. The decision asks that she notify the PTC, the Comoros, and the victims once she has made a final decision. See ICC-01/13-34, Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation, 16 July 2015, at para. 50.
Partial Dissent: Judge Kovács
Judge Kovács made a number of objections to the majority’s opinion, including, but not limited to, the following: he argued that the PTC should take a more deferential approach in reviewing the Prosecutor’s decision, viewing the PTC’s role as ensuring that the Prosecutor does not abuse her discretion in arriving at her decision, as opposed to functioning as a court of appeals. See ICC-01/13-34-Anx, Partly Dissenting Opinion of Judge Péter Kovács, 16 July 2015, at para. 7-8. He also argued that rather than limiting itself to reviewing the existing findings, the PTC had entered new findings. See id. at para. 11. Additionally, he argued that the Prosecutor’s conclusions on the issue of gravity were not necessarily unreasonable. See id. at para. 14.
Aftermath and Prosecutor’s Response
Since the PTC issued its decision, there has been some criticism of the decision, based on the premise that it infringes on the ICC Prosecutor’s discretion and the guarantee of prosecutorial independence. [Opinio Juris] This criticism has included calls for the Prosecutor to reject the PTC’s decision. [Just Security]
The Prosecutor recently rejected the request by the PTC to reconsider the decision. [Times of Israel]