Dov Jacobs invites ICC’s OTP to confirm its decision to not open a formal investigation into the Mavi Marmara incidents

19 November 2019

9 Bedford Row are pleased to announce Dov Jacobs has submitted a communication to the Prosecutor’s office of the International Criminal Court (ICC) in The Hague relating to the preliminary examination into the 2010 Mavi Marmara Gaza flotilla incidents. The Prosecutor is currently reviewing, at the invitation of the ICC Appeals Chamber, its decision not to proceed with a full investigation.

Dr Jacobs, in his submission, invites the Prosecutor to confirm her decision not to proceed with an investigation because nothing "warrants a change in the Prosecutor’s decision not to commence an investigation based on an assessment of the gravity of the situation". In relation to gravity, Dr Jacobs cautions against the Pre-Trial Judges’ interpretation of gravity which would have the effect of emptying this fundamental threshold of any substantial content. More particularly, Dr Jacobs rejects the idea that the level of “international concern” given to a situation might be an indication of gravity. Indeed, levels of “international concern” are notoriously contingent "on a number of political, media-coverage and advocacy factors that will not necessarily have any relation to the actual gravity of an event.” Dr Jacobs therefore invites both “the Prosecutor and the Chambers [to] steer away from criteria inherently subject to political manipulation in order to safeguard the independence of the ICC as a neutral judicial body.”

In addition to the issue of gravity, the submission also invites the Prosecutor to revisit some key procedural and jurisdictional issues. The submission raises the question whether the flagging of the Mavi Marmara in Comoros a mere few weeks before the incident could be an indication of the absence of genuine link between Comoros and the vessel, and what consequences this could have on the exercise of territorial jurisdiction by the Court. Dr. Jacobs also questions whether the referral of one incident can truly be considered a “situation” under the Rome Statute.

Building on a previous communication to the ICC Prosecutor, Dr Jacobs welcomes the OTP’s adoption of a rigorous methodology in assessing available evidence in the current situation, a methodology that should be adopted in all preliminary examinations. Dr Jacobs notes that this methodology allowed the Prosecutor to identify difficulties with several witness testimonies where witnesses appear to have been helped to write their statement and lied about it. As noted by Dr Jacobs "the Prosecutor, without explicitly saying it, suggested that witnesses were coached when drafting their witness statement, thereby affecting the plausibility of their testimony and their credibility as witnesses.”

Finally, also in relation to the assessment of available information, the submission cautions against following the Pre-Trial Chamber’s approach to the standard of proof at the preliminary examination phase. Dr Jacobs explains that following the Pre-Trial Chamber would mean that the Prosecutor would be required to open formal investigations after virtually every communication, even when presented with weak, conflicting, and sometimes absent information. As noted by Dr Jacobs, "if one pushes the Pre-Trial Chamber’s approach to its logical conclusion, the absence of sufficient evidence would militate in favor of the opening of an investigation to find the evidence. This would evidently empty the preliminary examination of any substance.”

The report is available in full here.