Q&A on ICC’s preliminary examination of Israel’s 2010 attack on humanitarian aid flotilla

FIDH and its member organisations in Palestine issue this Q&A to clarify and address certain issues in relation to the recent Pre-Trial Chamber’s decision in the situation referred by the Comoros.

On 31 May 2010, Israel attacked a flotilla that was on its way to bring humanitarian aid to Palestine. Israeli armed forces took over the Mavi Marmara, killing, injuring and mistreating a number of civilians on board.

On 14 May 2013, the Comoros referred this situation to the Prosecutor of the International Criminal Court (ICC), asking her to open an investigation [1].

The Prosecutor and the Judges of the Pre-Trial Chamber today disagree on what to do next: should an investigation be opened into this situation?

1. What happened after the referral of the situation by the Comoros?

The referral led the Prosecutor to open a ’preliminary examination’ into the situation. A preliminary examination is the first step that the Office of the Prosecutor of the ICC takes to consider whether or not a situation falls within the Court’s jurisdiction. In particular, the Prosecutor must establish if there is a reasonable basis to believe that crimes of genocide, crimes against humanity or war crimes have been committed.

Following its preliminary examination, the Prosecutor determines whether or not to open an investigation. Even where the situation falls within the jurisdiction of the ICC, in certain situations under Article 17(1), the Prosecutor may decide that the case is inadmissible.

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”. With that announcement, she closed the preliminary examination.

On 29 January 2015, the Comoros applied for a review of this decision. This request for review was also supported by the Legal Representatives of the Victims in the situation.

On 16 July 2015, Pre-Trial Chamber I of the ICC 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 judges considered that the Prosecutor erred in determining that the incident was not of “sufficient gravity” to justify opening an investigation.

2. What is the “Pre-Trial Chamber” and what is its role?

The Pre-Trial Chamber (PTC) at the ICC plays an important role in the pre-trial phase of judicial proceedings. The PTC, composed of three judges, must ensure the overall efficiency and integrity of the proceedings during the investigation. It also safeguards the interests of the accused as well as the victims, sometimes acting as a counterweight to the Prosecutor’s action or inaction.

In particular, before an investigation begins, the PTC authorizes the Prosecutor to open an investigation on her own initiative if it considers that there is a reasonable basis to believe that the situation falls within the jurisdiction of the Court. Otherwise, the PTC request sthe Prosecutor not to proceed or to present a further request with more information. If a situation is referred by a State or the UN Security Council, the PTC may review a decision of the Prosecutor not to proceed with an investigation.

In the present case, at the request of the Comoros, the PTC reviewed the decision of the Prosecutor not to proceed with an investigation into the situation referred by the State of Comoros, and concluded that the Prosecutor should reconsider her decision.

3. Why did the Pre-Trial Chamber ask the Prosecutor to re-consider her decision not to investigate?

The PTC, by majority, considered that the Prosecutor erred in deciding that the case was not of “sufficient gravity.” This is the first time a PTC has contradicted the Prosecutor’s decision not to open an investigation at the ICC.

In the present case, the Judges found that the Prosecutor failed to properly address the following factors relevant to the determination of gravity of a situation:

(i) Consideration with respect to the potential perpetrators of the crimes: The Prosecutor “failed to consider” whether the persons likely to be the object of the investigation would include those who are the most responsible for the attack, as opposed to those who held a senior or high position in the Israeli army or politically.

(ii) Scale of the crimes: The Prosecutor should have concluded that the scale of crimes leaned in favor of sufficient gravity. As the PTC explains, “ten killings, 50 - 55 injuries, and possibly hundreds of instances of outrages upon personal dignity , or torture or inhuman treatment, are a compelling indicator of sufficient, and not of insufficient, gravity.”

(iii) Nature of the crimes: The Prosecutor erred in not recognizing that there is reasonable basis to believe that acts qualifying as torture or inhumane treatment were committed. In the view of the PTC, taken into consideration that the Prosecutor believes the war crime of outrages upon personal dignity is here demonstrated, then it cannot reasonably already conclude that the war crime of torture or inhumane treatment was not committed – as both war crimes are similar in facts but require a different threshold to the level of severity of the pain inflicted, which cannot be determined before an investigation.

(iv) Manner of commission: The Prosecutor’s analysis of the manner of commission of the alleged crimes is affected by errors of facts, “such that they make unsustainable the conclusion of the Prosecutor with respect to […] the question whether the identified crimes were ’systematic or resulted from a deliberate plan or policy to attack, kill or injure civilians’”:

The Prosecutor should have addressed the issue of the alleged live fire used by the Israeli armed forces prior to the boarding of the Mavi Marmara ; or, in case she considers that she did, then she should not have set aside this information on the grounds that there are ’significantly conflicting accounts’. The PTC further elaborates: “[I]f, as stated by the Prosecutor, the events are unclear and conflicting accounts exist, this fact alone calls for an investigation rather than the opposite.”

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 soldiers of the Israeli forces.

The Prosecutor erred in not recognizing that the apparent cruelty inflicted upon the passengers during the taking of the Mavi Marmara could have resulted from a deliberate plan.

The Prosecutor also “unreasonably failed” to recognize 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 is not incompatible with the hypothesis that the identified crimes were planned, especially in light of the fact that the Mavi Marmara differed greatly from the other vessels of the flotilla in that it carried most of the people of the entire flotilla and no humanitarian supplies.

(v) Impact of the crimes: The PTC considered that the conclusion of the Prosecutor on the impact of the crimes is “flawed”. Indeed, in the view of the Chamber, the Prosecutor “the significant impact of such crimes on the lives of the victims and their families is, as such, an indicator of sufficient gravity. The physical, psychological or emotional harm suffered by the direct and indirect victims of the identified crimes must not be undervalued and needs not be complemented by a more general impact of these crimes beyond that suffered by the victims.” (emphasis added)

One must note however that this decision was taken by majority only, with Judge Péter Kovàcs dissenting. In particular, he considers that the Majority opted for an inappropriate standard of review, acting as an Appeal Chamber rather than exercising its limited supervisory role, and "clearly interfering with the Prosecutor’s margin of discretion". Also, in relation to the criterion of gravity itself, Judge Kovàcs believes that the Prosecutor’s findings are not necessarily unreasonable when she asserts that "the potential case(s) that could be pursued as a result of an investigation into this situation is limited to an event encompassing a limited number of victims, with limited countervailing qualitative considerations".

4. What are the next steps of the procedure?

The Prosecutor already announced her intention to appeal the PTC’s decision. In her opinion, the Chamber’s decision erred in her interpretation of the law “in a manner that alters the Prosecution’s mandate under the Statute and dramatically expands the scope of the Court’s operations”. In other words, the Prosecutor considers that the PTC exceeded its powers and she is afraid that too many cases under preliminary examination, currently or in the future, would then call for the opening of an investigation.

The Appeals Chamber will thereafter examine the admissibility as well as the merits of the Prosecutor’s appeal . The Appeal Chamber may consider that the Pre-Trial Chamber indeed erred in law, in which case the Prosecutor will not be requested for further reconsideration; or the Prosecutor may be asked again to re-consider her decision with regards to the (non-) opening of an investigation into the situation referred by the Comoros.

In any case, the decision whether to open an investigation ultimately remains at the Prosecutor’s discretion.

5. What is the difference between this situation and the preliminary examination in Palestine?

The situation referred by the Comoros focuses solely on the 31 May 2010 Israeli raid on the Mavi Marmara, a vessel registered in the Comoros which was part of a humanitarian aid flotilla bound for Gaza strip in Palestine.

The preliminary examination opened by the Prosecutor following Palestine’s declaration of acceptance of ICC jurisdiction relates to the alleged war crimes that occurred during the 2014 deadly summer in Gaza under the Israeli “Operation Protective Edge.” It also includes any other crimes committed in Palestine since 13 June 2014, such as alleged crimes in the West Bank related to Israeli settlements.

These two separate preliminary examinations are both linked to the conflict between Israel and Palestine, nonetheless with respect to different events and alleged crimes.

6. Will there be an investigation into the situation in Palestine?

The Prosecutor has not announced any decision yet with respect to the preliminary examination of the situation in Palestine.

On 1 January 2015, the Government of Palestine lodged a declaration under article 12(3) of the Rome Statute accepting the jurisdiction of the International Criminal Court (ICC) over alleged crimes committed "in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014".

Upon receipt of this declaration, the Prosecutor opened a preliminary examination of the situation at hand. The Prosecutor will need to consider issues of jurisdiction, admissibility and the interests of justice in making the determination whether an investigation should be opened.

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