Fatou Bensouda, ICC Prosecuter.
ICC Pre-Trial Chamber I rejects Comoros’ request for judicial review of the Prosecutor’s decision not to open an investigation
Pre-Trial Chamber I of the International Criminal Court (‘ICC’) issued on September 16 its decision rejecting the request submitted by the Government of the Comoros seeking a judicial review of the Prosecutor’s decision not to proceed with an investigation with respect to crimes allegedly committed in the context of the 31 May 2010 Israeli interception of the Humanitarian Aid Flotilla bound for the Gaza Strip.
By way of background, on 14 May 2013, the Union of the Comoros – a State Party to the Rome Statute – referred to the ICC Prosecutor the situation concerning ‘the 31 May 2010 Israeli raid of the Humanitarian Aid Flotilla bound for Gaza Strip’.
On 6 November 2014, the Prosecutor decided not to initiate an investigation, as she considered that the potential case(s) likely to arise following an investigation would not be of ‘sufficient gravity’ to justify further action by the ICC. On 16 July 2015, Pre-Trial Chamber I requested the Prosecutor to reconsider her decision, and did so again on 15 November 2018, having found that the Prosecutor had failed to properly reconsider. Pre-Trial Chamber I’s decision of 15 November 2018 was confirmed on appeal. On 2 December 2019, following reconsideration, the Prosecutor once again reaffirmed her position that no potential case arising from the situation would be sufficiently grave to justify further action by the ICC.
In the decision issued today, Pre-Trial Chamber I found that the Prosecutor did not genuinely reconsider her 6 November 2014 decision not to investigate. The Chamber found that the Prosecutor failed to correct the errors identified by the Chamber in the 16 July 2015 decision and committed new errors in her assessment of the gravity of the potential case(s).
Nonetheless, the Chamber decided not to request the Prosecutor to reconsider her decision again. Pre-Trial Chamber I held that, based on the guidance received from the Appeals Chamber, it was unclear whether and to what extent it may request the Prosecutor to correct the errors identified by the Chamber. Pre-Trial Chamber I considered that the current jurisprudence of the Appeals Chamber did not establish with sufficient clarity the exact distribution of prerogatives between the Prosecutor and pre-trial chambers.
Decision on the ‘Application for Judicial Review by the Government of the Comoros’
