Mavi Marmara ship
Coalition for the ICC

On 2 September 2019, the Appeals Chamber of the International Criminal Court (ICC) ordered the ICC Prosecutor to reconsider its decision not to open an investigation into the raid by Israeli forces onto the Comoros registered ship known as the Mavi Marmara. 

The judges, by majority, ordered the Office of the Prosecutor (OTP) to reconsider its 6 November 2014 decision not to open an investigation in the situation on the “Registered Vessels of Comoros, Greece and Cambodia.”

The Mavi Marmara was one of the ships that was part of the Humanitarian Aid Flotilla bound for Gaza which was raided by Israeli Defence Forces on 31 May 2010.

The Pre-Trial Chamber I (PTC) also ordered the OTP to reach a decision by 2 December 2019 in its reconsideration of whether an investigation in the situation involving the Mavi Marmara was warranted.

On 14 May 2013, the authorities of the Union of the Comoros, a State Party to the Rome Statute, referred the situation involving the Mavi Marmara to the ICC.

On 6 November 2014, the OTP decided against opening a formal investigation into the situation after concluding that “the potential case(s) likely to arise from an investigation into this incident would not be of ‘sufficient gravity’ to justify further action by the ICC”.

The Union of the Comoros’ approached the ICC asking the OTP to reconsider its 6 November 2014 decision. Comoros’ application was granted by the ICC’s Pre-Trial Chamber on 16 July 2015.

On 29 November 2017, the OTP reaffirmed its earlier decision and rejected to open an investigation in the situation.

 In November 2018, the PTC I granted the Union of Comoros' further application for judicial review against which the OTP appealed in February 2019.

In yesterday’s decision, the Appeals Chamber stressed that, in reconsidering its previous decision, the OTP must consider “the specific directions” provided by the PTC in its 16 July 2015 decision, and by the Appeals Chamber’s decision itself.

As a result, the Prosecutor is also expected to reconsider, among other elements, whether the alleged crimes were committed in a systematic manner or pursuant to a plan or policy to attack civilians.

In this regard, the Appeals Chamber found that the Prosecutor failed to follow the PTC's legal interpretations when reconsidering her initial decision. Consequently, the Appeals Chamber ruled that the PTC did not err when it decided to direct the Prosecutor to carry out a new reconsideration of her decision not to investigate.

For further information on the case, please refer to our case procedural document.