ICC Pre-Trial Chamber Refuses Prosecutors Appeal in Comoros Situation (Mavi Mamara)
But Will it Lead to Accountability?
The situation concerning the registered vessels of Comoros, Greece, and Cambodia, or what is more colloquially referred to as the ‘Mavi Mamara’ case, has been somewhat protracted, and subjected to a significant degree of ‘toing and froing’ between the Office of the Prosecutor (OTP) and the Pre-Trial Chamber (PTC) at the International Criminal Court (ICC).
On 14 May 2013, the authorities of the Union of the Comoros, a State Party to the Rome Statute referred an issue to the OTP.
The issue concerned the attack, on 31 May 2010, by the Israeli Defence Forces (IDF) on the humanitarian aid flotilla that was bound for Gaza, and that sought to break the blockade imposed.
On 31 May 2010, ships were boarded by the IDF, in particular the Mavi Mamara, and during the boarding, a number of passengers were killed.
On 6 November 2014, the OTP issued its decision not to investigate the attack, as although it was found that relevant offences may have been committed, the incident did not pass the ‘gravity’ threshold.
On 16 July 2015, the PTC I requested that the OTP reconsider its decision.
On 29 November 2017, the OTP filed its decision, a decision that it considered to be final, again declining to investigate the issue.
On 15 November 2018, the PTC I directed the OTP to reconsider the decision in light of the specific directions in the PTC decision of 2015.
This decision was appealed by the OTP, and today, 2 September 2019, the Appeals Chamber of the ICC has delivered its judgment.
The Appeals Chamber has confirmed the decision of the PTC of 15 November 2018 to the extent that the Prosecutor must reconsider her decision by 2 December 2019.
It is essential to highlight however that the Appeals Chamber reaffirmed the position that the ultimate decision as to whether to initiate an investigation is that of the OTP.
The decision therefore does not necessarily give the victims of the Mavi Mamara incident any further scope for accountability, as although it has reaffirmed the position that the OTP must reconsider the decision, it states that it must reconsider the decision in light of the directions previously made.
Of note, is the position at paragraph 82 of the judgment, which notes that the PTC cannot tell the OTP “how the information made available to her should be analysed, which factual findings she should reach, how to apply the law to the available information, or what weight she should attach to the different factors in the course of a gravity assessment”.
The position as far as the OTP is concerned therefore is that the final decision rests there, but, that decision must be made in accordance with the law, and in accordance with any directions that may have been made. Accordingly, the OTP may see fit to simply amend its reasoning for not opening an investigation so as to enable it confirm that all relevant information has been considered, and yet it does not deem the gravity threshold to be have been met.
Noting in particular, that at paragraph 79, the Appeals Chamber notes that “it is possible that, even once a legal error is corrected, the Prosecutor may still arrive at the same conclusion as before, namely not to initiate an investigation”.
In short therefore, the appeal by the OTP has failed, and thus the decision not to investigate must be reviewed, however, it is unlikely to bring about a different determination by the OTP.
By Carl Buckley