By Niklas Jakobsson
The Union of the Comoros has submitted an official request to review the International Criminal Court (ICC) prosecutor’s decision to take no further action in the Mavi Marmara case. The request was delivered in The Hague today by the counsel representing the nation, Sir Geoffrey Nice QC and Rodney Dixon QC.
The decision caused strong reactions last November when Fatou Bensouda announced that she would not take further action in the case.
The lawyers argue that in her decision not to go ahead with any case, Bensouda “selectively and inconsistently excluded” elements that determine how serious the case is. And that she failed to take into account “the relevant aggravating factors” when making her assessment. They describe her conclusions as “premature” and say that because she didn’t gather her own evidence or interview witnesses, her view was “partial”.
This is an issue that concerns a lot of people, but a complicated issue. Here’s a breakdown of what you need to know:
What is it about?
Marvi Marmara travelled as a part of the Gaza Freedom Flotilla delivering aid to Palestine in 2010. The ship, along with others in the flotilla, was boarded by Israeli forces and nine crewmembers on various ships were killed. On 14 May 2013 the ICC OTP received a referral from the Union of the Comoros regarding the Israeli action. It is standard practice for the OTP to always open a preliminary examination after a state referral. The preliminary examination was concluded on 6 November 2014 when prosecutor Fatou Bensouda announced that no further investigation will be launched.
Why did Bensouda drop the case?
In her 61-page document Bensouda said the decision was based on the lack of ‘gravity’. Gravity in this case relates to the number of people killed and/or amount of damage done and it’s a concept deeply engrained in the Rome Statute. According to Bensouda, the assessment of gravity included ‘quantitative and qualitative considerations’, including ‘the scale, nature, manner of commission of the crimes, and their impact’.
The referral was only about one very specific incident: eight out of the nine victims from the Mavi Marmara were Turkish citizens – but Turkey is not a member of the ICC and therefore cannot make a referral. The events took place in international waters and the Union of Comoros was involved, because one of the ships had a Comorian flag. Bensouda also stated the limitations of the referral – just this incident – made it more difficult to satisfy the gravity requirements. Nevertheless because she mentioned in her assessment that there was a “reasonable basis to believe war crimes were commited”, much of the discussion was around alleged Israeli war crimes.
How’s it possible to ask for the prosecutor’s decision to be overturned?
The possibility to request the review lies within the Rome Statue, article 53(3)(a) which was clearly stated by the prosecutor at the end of her ruling. This means that Comoros, as the referring state, can request the Pre-Trial Chamber to review Bensouda’s decision not to proceed with an investigation.
How related is this to the Palestinian preliminary examination?
This is a completely separate situation. But the lawyers for the Comoros argue differently. They say the killings on the flotialla are part of “one of the world’s gravest conflicts” and therefore “have the gravity of being part of something larger”. They also argue that the prosecutor should reopen this potential case “in light of the Situation on Palestine that has just been opened”.
Has this ever happened before?
This is the first time that a state has requested a review of an ICC prosecutor’s decision to not open a full investigation following a state referral. Appeals against decisions made by the prosecutor or even by judges throughout various stages of trials are not uncommon and often need resolution by the Appeals Chamber. But this time a request for review would be considered by the Pre-Trial Chamber which can then request the prosecutor to reconsider her decision.