Today the Appeals Chamber of the International Criminal Court (ICC) decided by majority to dismiss, in limine and without discussing its merits, the Prosecutor’s appeal against the decision of Pre-Trial Chamber I requesting the Prosecutor to reconsider the decision not to initiate an investigation into the situation referred to her by the Union of the Comoros with regard to “the 31 May 2010 Israeli raid on the Humanitarian Aid Flotilla bound for Gaza Strip”.
The Appeals Chamber found that, contrary to what the Prosecutor had submitted, the decision of Pre-Trial Chamber I was not one “with respect to […] admissibility” within the meaning of article 82 (1) (a) of the Rome Statute. The Prosecutor’s appeal was therefore inadmissible. As a part of its reasoning, the Appeals Chamber considered that to allow the Prosecutor’s appeal to be heard would rupture the scheme for judicial review of the Prosecutor’s decisions as explicitly set out in article 53 of the Statute, introducing an additional layer of review by the Appeals Chamber that lacks any statutory basis.
The Appeals Chamber’s decision was adopted by a majority composed of Judges Sanji Mmasenono Monageng, Howard Morrison and Piotr Hofmański. Judges Silvia Fernández de Gurmendi and Christine Van den Wyngaert appended a joint dissenting opinion on the admissibility of the Prosecutor’s appeal, concluding that they would declare the appeal to be admissible, without prejudice to their subsequent consideration of its merits.
Last year, the ICC Prosecutor, Fatou Bensouda, had decided to close her preliminary inquiry into the 31 May 2010 Israeli raid on a humanitarian flotilla bound for Gaza that killed nine Turkish activists.
The case was referred to her office on 14 May 2013 by the Union of the Comoros, which is an ICC State Party. One of the ships in the flotilla, the Mavi Marmara, was registered in the Comoros.
“After carefully assessing all relevant considerations”, the Prosecutor concluded that the potential case(s) likely arising from an investigation into this incident would not be of “sufficient gravity” to justify further action by the ICC.
On 29 January 2015, the representatives of the Government of the Union of the Comoros filed an Application for Review of the Prosecutor’s Decision not to initiate an investigation into the Situation. On 16 July 2015, Pre-Trial Chamber I found, by majority, that the Prosecutor had committed material errors in her determination of the gravity of the potential case(s) and requested the Prosecutor to reconsider her decision not to investigate.