Justice Hub revealed last week that the Union of the Comoros submitted a request for review of the Mavi Marmara case to the ICC Pre-Trial Chamber. In a 61-page document, the counsel representing the state urged the chamber to review ICC prosecutor Fatou Bensouda’s decision not to investigate the Mavi Marmara incident further.
Mavi Marmara was part of the Ship for Gaza flotilla in 2010 when it was intercepted by soldiers from the Israeli Defense Force on international waters. Ten people on various ships were killed and the situation was referred to the International Criminal Court by the Union of the Comoros – as the Mavi Marmara sailed under its flag. In November 2014, after concluding her preliminary examination, the Prosecutor announced there would be no investigation into the situation. She argued that there was a lack of ‘gravity’ and that the case didn’t reach the threshold to be investigated.
The request includes arguments that the newly opened preliminary examination into the situation in Palestine should be taken into account when evaluating gravity. Palestine submitted documents to join the ICC earlier in January 2015 and will be a full State Party on 1 April. With their ratification of the Rome Statute, Palestine also submitted a declaration giving the ICC jurisdiction to events dating back to 13 June 2014 covering the Gaza summer war. The conflict was called Operation Protective Edge by the Israeli Defense Force.
The request to review was submitted on 29 January by Sir Geoffrey Nice QC and Rodney Dixon QC and includes criticism of Fatou Bensouda’s reasoning and approach in reaching her decision.
Justice Hub sat down with the Counsel representing the Comoros to discuss the reasoning behind the request.
Q: At what point did you decide that you will submit this request to the Pre-Trial Chamber?
Sir Geoffrey Nice QC: As soon as we finished reading the decision.
Q: Were you going to submit your application even if Palestine didn’t join the ICC?
GN: We were going to submit it originally before Christmas and it was simply the amount of material that needed to be considered that led to the delay. Nothing else. We had no doubt that the claims, standing alone, free of the conflict last summer, merited the consideration of the ICC.
The conflict of Protective Edge last summer, and then the decision to sign up as a State Party and to make a declaration, clearly reinforced the decision. But it was a question of enforcing an existing decision which we would argue is entirely sufficient in its own.
Q: How long are you expecting this process to take?
Rodney Dixon QC: We will hopefully receive a schedule from the chamber quite soon that will set out the various steps. The Prosecutor obviously has to get a chance to respond and we would hope we have a right to reply.
It is our submission that as this matter is so important it should not be decided on the papers alone. We will be requesting an oral hearing so that all of the arguments can be aired. It is the first application of its kind. The standard needs to be set. Then it is for the chamber to decide on the application as there are no time limitations in the statute or the rules for handing down a decision.
Q: Bensouda’s reasoning for not moving forward was the lack of “gravity” and you point to several aspects that indicate that there is sufficient gravity individually. Out of these points, which one would you say is your most important argument?
GN: I don’t think that there is any doubt that to kill nine, or then ten, people by attacking a vessel full of known unarmed civilians engaged in humanitarian work, on the open sea, where there was no chance of anyone coming to their aid, is a pretty powerful index of gravity.
Although the other issues, the surrounding conflict, which adds to the gravity then later Protective Edge, which will come separately in a minute, have the effect of casting very powerful bits of light on this incident. The incident itself is simply very grave. Efforts by the prosecutor to say otherwise, observing at one stage that they didn’t seek the consent of Israel, we find rather hard to understand.
RD: As this is the first review by a State Party, it is not clear yet what legal standards the Court will apply. We have thus set out all of the relevant factors to be considered individually and together. We have not highlighted one in particular as they are all worthy of consideration by the Court. Our submission is that the full spectrum of arguments should be considered as the Prosecutor’s decision is flawed from the start all the way through to the finish.
A point worth noting is the Prosecution’s focus on the Haskanita case in Sudan, where a few peacekeepers were killed – obviously a serious act as well. It shows that the Prosecution acknowledges that they have a weakness here. Haskanita is a relatively low-level case and we say that to try to distinguish it from the flotilla case on the basis of the interests of peacekeeping is an unconvincing argument. To suggest that one attack for a few hours in Darfur is much more serious than this attack on the high seas which took place as part of a total blockade in an armed conflict that has occupied the world’s attention for decades is very hard to justify. It has to be viewed and assessed in its wider and related context. This is one of the issues that we are requesting the chamber to review.
Q: How do you think that the prosecutor has used the same situation – the one in Darfur – to come up with such a different argument?
GN: Israel through its own agency or the agency of others seems to be able to exercise powers on major institutions. Many people would say that Israel has been protected for a very long time from the eyes of judicial authorities and unhappily one has to prepare for that happening even at the ICC. It is after all quite remarkable and immensely sad amongst everything that it took her 18 months to reach this negative decision when she could have also reached a positive decision straight away and spent a year and a half on a proper investigation in the time it has taken her to say ‘no I won’t’.
Q: You also critisize her lack of using witness testemonies, why is that?
GN: The gravity is of many very obvious kinds: how many people were killed? How brutal were the killings? How many people were handcuffed? How brutal was the handcuffing? How many were insulted or offended, assaulted, frightened and so on? You must investigate that. You cannot investigate it properly without witnesses.
Q: Bensouda’s original decision seemed very cut and dried – it was very exhaustive – how come there are so many issues with it?
GN: You have 500-600 people attacked on the high seas and ten of them killed. Don’t you owe a duty at some level, whether it is open source material or you go deep to investigate into who made that decision, and who is responsible for it? If you don’t do that, can you be said to have exercised your discretion? We would argue, not at all. This has been selective, naïve in some ways and manifesting, or seeming to manifest, a pre-determined conclusion rather than to manifest the journey through an exploration towards one.
Q: If you think it was a pre-determined conclusion, why do you think she would take 18 months to come to that conclusion?
GN: Why wouldn’t she? Indeed, the length of time taken is more indicative of the possible oblique purpose served. After all, she could have opened an investigation after three months, spent two years investigating and then said that there is nothing. This way around, knowing the rules as of course she will, 18 months not even to open the door, another six to nine months to get a decision from the court – two years and three months. Even if the court implies that she should do it again – another two years. One could say that the pattern of events would certainly fit with a lack of willingness to see this through.
Q: You criticize her timeliness, so what stops Bensouda from taking another 18 months to revisit her decision if she decides to?
RD: The purpose of this challenge is both to reconsider the decision and to do as expeditiously as possible. We are urging the Prosecution to re-look at the decision and to move swiftly to open an investigation. Our argument on behalf of our client has always been that there is no need to waste any time – it is a straightforward matter – an investigation should be initiated without delay. There is no justification in the circumstances for a lengthy preliminary examination. Based, at least, on the UN reports, the findings of the Red Cross about the blockade being a collective punishment, and the countless victim statements, there is a clear and compelling case to open an investigation immediately.
Q: This type of request has never happened before, so what do you intend to accomplish with this since the Pre-Trial Chamber can only request Bensouda to revisit her previous decision?
RD: Were the chamber to highlight that there are certain deficiencies in the Prosecutor’s decision, that would require her to reconsider these matters. They could not be ignored. This is a stage in the procedure which the Prosecutor highlighted in her decision. If the shortcomings of the Prosecutor’s decision are identified as we have urged the chamber to do on behalf of the Government of the Comoros, the Prosecutor will have to re-examine the entire situation.
On the instructions of our client, we are seeking to keep all the avenues open for the victims of this attack to ensure that the matter is properly investigated. The alleged perpetrators are not being prosecuted anywhere else, not in Israel nor any other country. If the ICC will not even investigate the matter, it will be a most unfortunate state of affairs in which impunity will triumph. On behalf of the victims, we are persevering to obtain justice.
GN: We have no idea, because it is unprecedented, how strong the judges observations can be. There is absolutely no reason for us to think that if the judges are independent, strong-minded people, they will not make very strong-minded observations.
Q: You also mention the deterring effect that an investigation could have had in your submission – could you elaborate on that?
GN: The question of deterrence cannot be overlooked and must be an embarrassment for the office of the prosecutor. Had she made her decision in a timely way and had her decision been to the contrary effect, that she would investigate, when whatever happened to allow the Israeli Defense Force to be sent by the government into Operation Protective Edge, if by that time the Israelis had known that they might be investigated – would they have done what they did? Many people would regard the 2200 people killed, which of whom a quarter were children, to be one of the more flagrant examples of disproportionality.
Q: Do you not think that it’s a bit of a stretch to say that an investigation into the Mavi Marmara would have stopped a full-scale war?
GN: I don’t think that it’s at all a stretch, and more, when these courts were established it was rather a curious idea that they would achieve reconciliation and bring all sorts of associated benefits other than just trying people and punishing them. Many of us could have never quite understand why they had these hopes. This is the one example where quasi-judicial prosecutorial intervention might have served a real purpose. Unlike for example the ICTY, and maybe even the ICTR, where many people say that these collateral benefits by large do not follow.
Q: Based on recent Israeli statements, it is very unlikely that an official will stand before the ICC, so is this more a statement to prove a point than a realistic thought that a person will stand before the ICC?
RD: That is not the point that the Prosecution would make. The Prosecution has consistently stated in other situations before the ICC that the alleged perpetrators will eventually all be captured and appear before the Court. It is viewed as a long term process. The Prosecution has highlighted that suspects travel and thus can be arrested. So it is not an academic exercise by any means.
Q: Do you not fear that adding the argument of the ongoing preliminary examination into the situation in Palestine will add complexity and time to the decision?
RD: I do not think it overcomplicates matters because our essential argument is that the ICC has two jurisdictions – one for the flotilla and one as a result of the recent declaration and accession – and they are related as they concern acts that have taken place in the same conflict, the same occupation, the same blockade.
What we are submitting is that the Prosecutor needs to go back and look at the flotilla case in its proper context. In so doing, the Prosecution can now also consider events that come within the jurisdiction of the Court as a result of the recent declaration to determine if they are related and heighten the gravity of the case.
It may be worth having in mind that it is usually defence counsel who would take the overly narrow approach adopted by the Prosecutor in the present case, arguing that one should only consider what happened on three ships in the flotilla, and nothing more – ignoring the surrounding circumstances. That you may think is the job of the defence – to seek to restrict the scope of the case against the accused – and not the Prosecutor who should embrace all relevant circumstances to prove the case against the accused.
Q: To what extent would you argue that this request will be granted?
GN: There are a large number of very strong arguments, some of which I’m afraid show that the prosecutor’s reasoning was hard to follow, as a minimum. And therefore if we are right in those arguments and those arguments are justified, you might think that there is a very strong case.