Overview

phase: Preliminary Examinations, Closed - Decision Not to Proceed

Background

The preliminary examination of the Situation on the Registered Vessels of Comoros, Greece, and Cambodia focuses on alleged atrocity crimes committed during a violent interception of ships (including the MV Mavi Marmara, registered to the Union of the Comoros) which involved Israeli Defense Forces (IDF) and civilian passengers on the ships. The incident occurred on May 31, 2010.

In 1948, with the official end of Great Britain’s colonial mandate and the declaration of Israel’s independence as a state, the League of Arab States declared it would protect the rights of Palestinians and attacked Israel. Israeli forces repelled the Arab forces. In 1967, in the Six-Day War, Israel again defeated Arab forces and gained control of the Sinai Peninsula (later returned to Egypt), the Golan Heights, the Gaza Strip, the West Bank, and East Jerusalem. Israel’s control of these territories has led to a decades-long conflict with Palestinians in the Gaza Strip and the West Bank. In 2005, Israel withdrew its military forces and settlers from Gaza but maintained control over the territory through a border barrier as well as a naval blockade. The Free Gaza Movement periodically sent flotillas to break the blockade and deliver humanitarian aid to Gaza.

On May 28, 2010, a flotilla of ships embarked upon the journey to Gaza from Turkey. The flotilla carried over 700 passengers, mainly pro-Palestinian activists and humanitarian aid workers, from 36 countries. On May 31, 2010, the IDF boarded the ships to enforce Israel’s blockade, and the IDF fired upon civilian passengers which resulted in the deaths of ten civilians (nine Turkish citizens and one dual Turkish-American citizen) and injuries to humanitarian aid workers. On June 1, 2010, the UN Security Council called for an independent international investigation into the IDF attack on the flotilla.

ICC Status

Cambodia is a State Party of the International Criminal Court (ICC) and ratified the Rome Statute on April 11, 2002. On May 14, 2013, after receiving a referral (dated May 14, 2013) from the government of Comoros of alleged atrocity crimes committed on its territory, the ICC Office of the Prosecutor (OTP) opened a preliminary examination. On November 6, 2014, the OTP closed the preliminary examination on the basis that the admissibility requirement had not been met (the cases would not be of sufficient gravity). On July 16, 2015, at Comoros’ request for review of the OTP’s decision, Pre-Trial Chamber I held (“2015 decision”) that the OTP had made errors in its assessment that the admissibility requirement had not been met and requested that the OTP reconsider its decision. On November 6, 2015, at the OTP’s appeal of the Pre-Trial Chamber’s decision, the Appeals Chamber held that the OTP’s appeal was not admissible without considering the merits and dismissed the OTP’s appeal. Further, the Appeals Chamber held that although the Pre-Trial Chamber may request OTP’s reconsideration of its decision, the Pre-Trial Chamber may not compel the OTP’s reconsideration.

In November 2016, the OTP reported that the OTP had conducted a de novo review in preparation of a final decision. In November 2017, the OTP reaffirmed its prior decision to close the preliminary examination in light of a comprehensive review of the materials that were available at the time of the 2014 decision as well as a de novo review of new information made available between 2015 and 2017. The OTP maintained that the Pre-Trial Chamber erred in its interpretation of the relevant admissibility standard in its 2015 decision.

Comoros applied in February 2018 for further judicial review of the OTP’s decision, prompting the Pre-Trial Chamber to direct the OTP to review its decision again in accordance with the specifications of the 2015 decision. The OTP appealed this decision but the appeal was denied by the Appeals Chamber, which held that the OTP had to review the decision, but the ultimate decision of whether to initiate an investigation is still reserved for the OTP.

As a result, the OTP refiled a revised decision on December 2, 2019, again deciding that the preliminary examination should be closed. Comoros has once again applied for further judicial review of this most recent  OTP decision.

For more information on the preliminary examination of the Situation on the Registered Vessels of Comoros, Greece, and Cambodia, please visit the ICC page.