The venture of the comoros referral at the preliminary examination stage

Abstract

As of September 2017, the situation on Registered Vessels of the Union of the Comoros, the Hellenic Republic and the United Kingdom of Cambodia (hereinafter the ‘Gaza flotilla situation’) was still on the list of ongoing preliminary examinations of the Office of the Prosecutor (hereinafter the ‘OTP’). The Gaza flotilla situation goes back to a referral by the Union of the Comoros, which was submitted to the International Criminal Court (‘ICC’) on 14 May 2013 “with respect to the 31 May 2010 Israeli raid on a humanitarian aid flotilla bound for the Gaza Strip”.1 The referral proved both legally and politically significant. The Comoros referral is the first referral of a State concerning the alleged crimes committed by another State that is also a non-State Party of the Rome Statute of the ICC.2 Moreover, the referral by Comoros has a symbolic significance – especial-ly if one considers the Court’s activities in its first decade – namely, it is a situation where an African State is referring a situation involving a non- African State to the ICC, and for this reason and others, such as due to the fact the situation in question involves a powerful Western State vis-à-vis a small African State, a commentator has dubbed the Comoros Referral as the “Nicaragua Moment for the ICC”. Following her receipt of the referral, the Prosecutor of the ICC has commenced a preliminary examination4 into the Gaza flotilla situation; and in her analysis dated 6 November 2014, she concluded that there was “a reasonable basis to believe that the killing of passengers of the Mavi Marmara amounted to the war crime of wilful killing pursuant to Article 8 (2) (a) (i) of the Statute”. Nonetheless, she decided not to initiate an investigation into the situation by invoking the Court’s gravity requirement. Up until the situation in question, the Prosecutor has not declined to proceed when a State Party has referred a situation. Comoros successfully exercised its right under Article 53 by filing a request for review of the Prosecutor’s decision not to investigate and raised two complaints, that is, the contextualization of the gravity analysis and analytical errors in the Prosecutor’s assessment of gravity. After reviewing the Prosecutor’s decision, Pre-Trial Chamber (‘PTC’) I requested her to reconsider. The Prosecutor’s vigorous opposition to PTC I’s decision is one of the remarkable procedural aspects with respect to the Gaza flotilla situation. Unsurprisingly, the Appeals Chamber dismissed a request for appeal against the Pre-Trial Chamber I’s decision by the Prosecutor in limine, as the normative framework of the Rome Statute does not contain such an appeal mechanism. As stated in the 2016 report on preliminary examination activities by the OTP, the Prosecutor has reconsidered her decision, which has not been made public so far, however...