The end of the ICC: What is next for the Mavi Marmara case?

In the International Criminal Court's (ICC) ruling published on Thursday on the Mavi Marmara case, the judges said prosecutors should review the conclusion they had reached last year that the alleged crimes committed during the attack lacked sufficient gravity and scale to be investigated. This may potentially lead to the investigation of the crimes of the commanders, and will bring more cases before the court.

On Jan. 3, 2009, Israel imposed a naval blockade off the coast of the Gaza Strip of up to a distance of 20 nautical miles as part of a broader effort to impose restrictions on travel and the flow of goods in and out of the Gaza Strip. The Free Gaza Movement was formed to challenge the blockade. It organized the Gaza Freedom Flotilla, an eight-boat flotilla with over 700 passengers from approximately 40 countries with the stated intentions to deliver aid to Gaza, break the Israeli blockade and draw international attention to the situation in Gaza and the effects of the blockade.

The Israeli Defense Forces (IDF) assaulted the flotilla on May31, 2010 in international waters 64 nautical miles from the blockade zone. The interception attacks resulted in the deaths of 10 passengers on the Mavi Marmara.

Three of the vessels in the flotilla were registered to states parties. The ICC has jurisdiction "ratione loci" over conduct committed on board the vessels registered respectively in Comoros (the Mavi Marmara), Cambodia (the Rachel Corrie) and Greece (the Eleftheri Mesogios/Sofia). Although Israel is not a state party, according to the Rome Statute, the ICC can exercise its jurisdiction in relation to the conduct of non-party state nationals alleged to have committed Rome Statute crimes on registered vessels and aircraft, which is the Comoros in the present case.On May 14, 2013, the Comoros referred the situation to the prosecutor "with respect to the May 31, 2010 Israeli raid on the Humanitarian Aid Flotilla bound for the Gaza Strip"

On Nov. 6, 2014 the Office of the Prosecutor of the ICC was responsible for determining whether the situation met the legal criteria established by the Rome Statute to warrant investigation by the ICC. For this purpose, the Office of the Prosecutor of the ICC conducted a preliminary examination of all situations that came to its attention based on statutory criteria and the information available. On this basis, the prosecutor concluded that the information available provided a reasonable basis on which to suggest that war crimes were committed on the Mavi Marmara during the attacks on May 31, 2010. However, in 2014, the prosecutor decided not to investigate the event because of the lack of gravity to justify further action by the ICC. This means the IDF committed a crime, but the actions were not grave enough to exercise the commanders before the ICC.

On Jan. 29, 2015, the Representatives of the Government of the Union of the Comoros filed an Application for Review of the prosecutor's decision not to initiate an investigation. Further submissions were received by the chamber from the prosecutor, the Comoros and the victims who had communicated with the ICC in relation to the situation.

In its decision of July 16, 2015, Pre-Trial Chamber I stated that the prosecutor committed material errors in her determination of the gravity of the potential cases. In particular, the chamber identified material errors in the prosecutor's assessment of the possibility to prosecute those who may bear the greatest responsibility for the identified crimes committed during the seizure of the Mavi Marmara, as well as of the scale, nature, manner of commission and impact of the potential crimes. Accordingly, the chamber requested the prosecutor reconsider her decision not to initiate an investigation. The prosecutor will do so as soon as possible, and will notify the chamber, the Comoros and the victims, who have provided observations on her conclusion and of the reasons for it.

Although it seems that the court did away with the investigation into the crimes, there is another possibility that could upset the victims again. The decision certainly does not mean that there will be an investigation. The most intriguing question is whether the Office of the Prosecutor will appeal this decision. It is quite a damaging decision from their perspective and there are several angles such as the standard of review and the operation of the concept of gravity that call for careful scrutiny, as the prosecutor will want to maintain room for maneuvering in future cases. I suspect that the prosecutor might push back a bit and try for an appeal.

Overall, the process the decision of the Pre-Trial Chamber to review the prosecutor's decision not to initiate an investigation, reminds us of one of the most pertinent statements describing the complex situation between Israel and the ICC. "If the International Criminal Court investigates Israel, this will be the end of the ICC, but if the ICC did not investigate, this will also mean the ending of the ICC."

Ultimately, the Comoros decision is not only an indication of how the ICC will approach the determination of the gravity of the alleged crimes, but also how to react against political pressure. Apparently, this case will bring about more interesting events and will also draw conclusions regarding the competence of the ICC. The most challenging task that lies ahead of the court from now on is how to adjust the standards for opening a formal investigation in the future. This is one to watch.