On 2 September 2019 the Appeals Chamber of the International Criminal Court (ICC) ordered the Prosecutor of the International Criminal Court (the Prosecutor), Fatou Bensouda, to reconsider her decision not to open an investigation into the Gaza flotilla raid. This marks the third intervention by the ICC against the Prosecutor’s decision of November 2014 not to launch an investigation into alleged serious crimes committed by Israeli military forces against humanitarian activists on 31 May 2010. This blog provides a brief overview of the prosecutorial and judicial decisions made at the ICC in relation to this egregious incident.
Events on 31 May 2010
On 31 May 2010, Israeli commandos enforcing a naval blockade on the occupied Gaza Strip stormed the Mavi Marmara, a flotilla crewed by an alliance of humanitarian activists who were aiming to deliver 10,000 tonnes of humanitarian aid to Gaza. The flotilla was initiated by the Free Gaza Movement – a Cyprus based coalition formed to oppose the blockade and closure of the Gaza Strip – in conjunction with the Istanbul-based Foundation for Human Rights and Freedoms and Humanitarian Relief. Israeli military forces intercepted the flotilla, boarding and taking over six of the eight vessels. The operation resulted in the deaths of ten humanitarian activists and twenty-four injured.
International response to the events
The incident was widely condemned by the international community. On 1 June 2010, the UN Security Council issued a presidential statement condemning the acts and calling for a prompt, impartial, credible and transparent investigation into the incident. The Council of the European Union echoed the conclusions of the UN Security Council in its call for an immediate, full and impartial inquiry with credible international participation.
The UN Human Rights Council subsequently launched an independent fact-finding mission to investigate alleged international humanitarian and human rights law violations. A separate panel of inquiry was also appointed by the UN Secretary-General (the Palmer-Uribe Panel). In a report published in September 2010, the UN fact-finding mission found that the actions of the Israeli military forces were contrary to international law and that there was sufficient evidence to instigate prosecutions for grave breaches of the Geneva Convention, namely for the crimes of wilful killing, torture or inhuman treatment, and wilfully causing great suffering or serious injury to body or health. The report stated that “[t]he conduct of the Israeli military and other personnel towards the flotilla passengers was not only disproportionate to the occasion but demonstrated levels of totally unnecessary and incredible violence”. The Palmer-Uribe panel of inquiry similarly concluded the use of force by Israel was excessive.
Referral to the ICC
In May 2013, the ICC received a referral from a Turkish law firm on behalf of the Union of the Comoros requesting the Prosecutor to investigate the crimes committed within the jurisdiction of the Court arising from the raid. This was permissible because Article 12 (2)(a) of the Rome Statute of the ICC provides that the ICC can exercise its jurisdiction in relation to the conduct of non-Party State nationals (Israel is a non-state party) whom are alleged to have committed Rome Statute crimes on vessels registered under an ICC State Party. The events in question primarily took place on board the Mavi Maramara vessel, which was registered in the Comoros at the time of the incident. Comoros has been a state party to the ICC since 2006.
In its response on 6 November 2014, the Office of the Prosecutor found that there was a:
“reasonable basis to believe that war crimes have been committed in the context of the interception of the Mavi Marmara by IDF soldiers on 31 May 2010, including namely: (1) wilful killing […]; (2) wilfully causing serious injury to body and health […]; and (3) committing outrages upon persona dignity” pursuant to the Rome Statute”.
However, the Office of the Prosectuor went on to conclude that it would not open an investigation because the crimes did, in its assessment, reach sufficient gravity to be admissible before the ICC. In its assessment of the gravity of the crimes, the Office of the Prosecutor addressed both qualitative and quantitative considerations, specifically the scale, nature, manner of commission and impact of the relevant crimes:
Scale: The Office of the Prosecutor found that the total number of victims reached relatively limited proportions compared to other cases under investigation by its Office;
Nature: The Office of the Prosecutor found that whilst the treatment of passengers by the Israeli military forces onboard the Mavi Marmara was both humiliating, degrading and lacked justification, the evidence did not suggest that it reached the threshold of torture or inhuman treatment.
Manner of commission: The Office of the Prosecutor found that the information available did not suggest that the alleged crimes were systematic or resulted from a deliberate plan or policy to attack, kill or injure civilians.
Impact: The Office of the Prosecutor found that the interception of the flotilla did not ultimately result in blocking the access of Gazan civilians to humanitarian supplies.
Based on the above, the Office of the Prosecutor concluded that the alleged crimes would not be of sufficient gravity to justify the pursuit of an investigation. In concluding that the gravity threshold was not met, the Office of the Prosecutor found that it therefore could forego an assessment on complementarity (an assessment whether Israel was conducting, or had completed, a genuine investigation into the incident to preclude the opening of an investigation by the Office of the Prosecutor).
Challenges to the Prosecutor’s decision
Following a request by the Government of Comoros, the Pre-Trial Chamber I of the International Criminal Court requested, on 16 July 2015, that the Prosecutor reconsider her decision not to pursue an investigation in relation to the alleged crimes. The Pre Trial Chamber in particular identified material errors in the Prosecutor’s assessment of the possibility to prosecute those persons who may bear the greatest responsibility for the identified crimes committed during the seizure of the Mavi Maramara, as well as of the scale, nature, manner of commission and impact of the potential crimes.
Over two years later, in what she described as her “final decision” on 30 November 2017, the Prosecutor effectively dismissed the Pre-Trial Chambers identification of material errors, when reaffirming her earlier decision not to pursue a full investigation, Fatou Bensouda stated:
“On the basis of this comprehensive analysis, my conclusion remains that there is a reasonable basis to believe that war crimes were committed by some members of the Israel Defence Forces during and after the boarding of the Mavi Marmara on 30 May 2010; however, no potential case arising from this situation can, legally speaking, be considered of “sufficient gravity” under the Rome Statute to be admissible before this Court, therefore barring the opening of an investigation.”
Ongoing challenge to the Prosecutor’s decision
Following the Office of the the Prosecutor’s decision above, the Pre-Trial Chamber, in November 2018, ordered that the Prosecutor re-evaluate her decision, “demonstrating in detail her assessment of the relevant facts in light of the specific directions contained in the [Pre-Trial Chamber’s] 16 July 2015 Decision”. The Pre-Trial Chamber also criticised the Prosecutor’s two year delay in making her decision, stating that it was “irreconcilable” with the duty to conclude a decision “as soon as possible” as per rule 108(2) of the ICC’s rules of procedure and evidence.
On 2 September 2019, the Appeals Chamber of the International Criminal Court “confirmed” that the order of the Pre-Trial Chamber 1 was valid. In its judgment, the Appeals Chamber instructed that the Prosecutor reconsider her decision not to open an investigation in accordance with the 15 July 2015 decision of the Pre-Trial Chamber, and the judgment of the Appeals Chamber. The Appeals Chamber further instructed the Prosecutor to notify the Pre-Trial Chamber and those participating in the proceedings of her final decision by 2 December 2019.
This decision has been welcomed by the prominent Palestinian human rights organisation, Al-Haq, which has urged the Prosecutor to fully investigate the events of the Mavi Maramara incident. LPHR takes the position that it is imperative that the Prosecutor very carefully reconsider its decision not to open an investigation into the alleged commission of serious international crimes against humanitarian activists on the Mavi Marmara, with particular reference to the five material errors identified by the Pre-Trial Chamber in its 16 July 2015 decision.
The important prosecutorial and judicial decision-making in relation to the Mavi Marmara incident, takes place against the separate and broader backdrop of the Office of the Prosecutor’s ongoing preliminary examination into the situation of Palestine, which commenced in January 2015 and is on the verge of completion. LPHR’s recent Q&A on the current progress of the preliminary examination and potential next steps, can be read here.