This 2-1 ruling marks the first time ICC judges have opposed a Prosecutor’s decision not to investigate, and argues that the attack may have been sufficiently serious to be investigated and tried at the Court.
“The Pre-Trial Chamber has made history by insisting that Israel’s violent actions against civilians on the Mavi Marmara aid vessel bound for Gaza may in fact have been serious enough to warrant ICC intervention,” declared Karim Lahidji, FIDH President. “This decision highlights the Court’s system of checks and balances as well as the different forms of recourse available to victims of international crimes.”
On 16 July 2015, Pre-Trial Chamber I of the ICC (Kovacs dissenting) requested the Prosecutor to reconsider her decision not to initiate an investigation into the takeover of the Mavi Marmara vessel by Israeli armed forces on 31 May 2010. The attack allegedly led to multiple deaths, injuries and mistreatment of civilians who were on their way to provide humanitarian aid to Palestine.
The judges considered that the Prosecutor committed multiple errors in determining that the incident was not of “sufficient gravity” to justify opening an investigation [1]. In particular, the Judges found that “ten killings, 50-55 injuries, and possibly hundreds of instances of outrages of personal dignity, or torture or inhuman treatment are a compelling indicator of sufficient gravity” (emphasis added). Further, the decision argues the attack impacted more than just the direct and indirect victims, generating an international response by States and the U.N. The Prosecutor is therefore invited to reconsider her decision as soon as possible.
“The attack on the flotilla en route to Gaza shook the international community,” stated Shawan Jabarin, FIDH Vice President. “Requesting further analysis of the gravity and impact of Israel’s actions may reopen a door to accountability for crimes related to the conflict between Israel and Palestine.”
The Pre-Trial Chamber clarified the legal criteria to be applied in all situations to determine whether or not an investigation should be opened. However, the Prosecutor holds the ultimate discretion about whether or not to proceed.
Background
On 14 May 2013, the Comoros referred to the Prosecutor the situation “with respect to the 31 May 2010 Israeli raid on the Humanitarian Aid Flotilla bound for Gaza strip.” On 6 November 2014, the Prosecutor announced that she had determined that there was reasonable basis to believe that several counts of war crimes had been committed, but that the flotilla incident was not sufficiently grave to warrant action by the Court. On 29 January 2015, the Comoros applied for the review of this decision. This request for review was also supported by the Legal Representatives of the Victims in the situation.
In addition to the situation regarding the Comoros, on 16 January 2015 the Office of the Prosecutor opened a preliminary examination to analyze whether the situation in Palestine since July 2014 falls within the jurisdiction of the ICC. FIDH and its member organisations in Palestine have alleged that Israel committed war crimes and crimes against humanity in Palestine during last summer’s Operation Protective Edge, and that such crimes should be investigated by the ICC.