Comoros situation: Dismissal of the Prosecutor’s appeal against decision requesting reconsideration of the decision not to initiate an investigation.
Today, 6 November 2015, 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 ICC founding treaty.
The Prosecutor’s appeal, submitted to the Appeals Chamber on the basis of article 82 (1) (a), 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.
Decision on the admissibility of the Prosecutor’s appeal against the “Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation”
