Israel & the International Criminal Court

Efforts at the UN and ICC to Break Israel’s Legal Marine Blockade of Gaza

Timeline of the Palestinians' second attempt, via third parties, to pursue Israel at the ICC
(Mavi Marmara/Gaza flotilla incident)
ICC Litigation records

(a) Referral by the Union of the Comoros and opening of a preliminary examination [May 14, 2013]
  • International Criminal Court, "Referral of 'the Union of the Comoros' under Articles 14 and 12(2)(a) of the Rome Statute arising from the 31 May 2010, Gaza Freedom Flotilla situation", May 14, 2013

    "1. This referral along with its particulars are submitted to the Madame Prosecutor of the International Criminal Court (hereinafter 'ICC') by Union of the Comoros (hereinafter 'Comoros'), a State Party to the ICC[FN. 2], as well as the registered State of MV Mavi Marmara vessel, -one of the passenger vessels of the humanitarian aid flotilla bound for Gaza on 31 May 2010, in which nine (9) victims were killed on board and more than dozens were seriously injured, as a consequence of the attacks of the Israel Defence Forces (hereinafter the 'IDF'), in international waters. ... 4. We therefore respectfully request the Prosecutor of the ICC, to initiate an investigation pursuant to Articles 13 (a) and (14) of the Rome Statute into War Crimes and Crimes Against Humanity, arising from IDF's attack on the humanitarian aid flotilla on the 31st May 2010. In light of the respectful submission of Comoros and for reasons delineated below, the ICC has jurisdiction to consider this matter under Article 12(2)(a) of the Rome Statute..."
ICC Litigation records

(b) Initial decision by the Prosecutor to close the preliminary examination [November 6, 2014]
ICC Litigation records

(c) Subsequent steps taken by the Prosecutor, Pre-Trial Chambers, Appeals Chamber, and Union of Comoros [January 2015-May 2020]
  • International Criminal Court "Application by the Union of Comoros for Review pursuant to Article 53(3)(a) of the Prosecutor's Decision of 6 November 2014 not to initiate an investigation in the Situation, No.: ICC-01/13", January 29, 2015

    "REQUEST TO RECONSIDER THE DECISION: OVERVIEW OF GROUNDS OF REVIEW
    6. The Applicant State Party respectfully requests that the Pre-Trial Chamber should direct the Prosecutor to reconsider the Decision that there is no reasonable basis to believe that the Situation is of a sufficient gravity to initiate an investigation. There are cogent grounds for requiring the Prosecutor to reconsider her decision in light of all available information when the correct legal standards are applied. These grounds are explained in detail below.

    7. The Applicant submits that the interests of justice and fairness, which are the core of the ICC's mandate, strongly militate in favour of the Prosecutor reconsidering her decision. Impunity for all those involved - from top politicians and military leaders to the individual soldiers shooting dead ten unarmed passengers on the Mavi Marmara and committing grave offences against hundreds of other passengers, all on the high seas - will be the inevitable result of the Prosecutor refusing to investigate these alleged international crimes, which she has a reasonable belief were committed. There is no suggestion from Israel that any of those committing these crimes has been investigated, is being investigated or will be investigated. There have been no effective national investigations and no prosecutions in Israel of top political and military leaders whose decisions about the Israel-Gaza conflict have led to the events under consideration and to other antecedent and subsequent military interventions that have caused great loss of life to non-Israeli citizens. The Prosecutor's decision will thus lead to instant impunity for those immediately involved, but set within a broader impunity for Israel that, it may be accepted by the Pre-Trial Chamber, increasingly disturbs the conscience of the world. The Chamber is urged to direct the Prosecutor to reconsider her decision in light of the fundamental and seminal legal issues and in light of the grave factual issues identified in this Application.

    8. It is the Applicant's submission that the Prosecutor should be directed to reconsider the Decision because she has disregarded the law in failing to apply correctly the relevant legal standard of proof (and lowest of all ICC legal tests) of 'a reasonable basis to believe' which determines when to open an investigation. She has also failed to attend to facts - identified below - that reveal the true gravity of the Situation. By requesting the Prosecutor to reconsider the Decision, the Pre-Trial Chamber can guarantee - for victims, the rule of law and the reputation of the ICC itself - that the first filtering process by which factual situations are admitted into ICC consideration is not coarsened to become an unnecessary obstacle to a proper State Party's referral..."
  • International Criminal Court "Decision on the request of the Union of the Comoros to review the Prosecutor's decision not to initiate an investigation, No.: ICC-01/13", July 16, 2015:

  • "Pre-Trial Chamber I of the International Criminal Court hereby renders its decision on the request of the Union of Comoros to review a decision of the Prosecutor not to initiate an investigation...

    49. In the view of the Chamber, the combination of: (i) the Prosecutor's failure to consider that the persons likely to be the object of the investigation into the situation could include those who bear the greatest responsibility for the identified crimes; (ii) the Prosecutor's error as to how the scale of the identified crimes can be taken into account for the assessment of the gravity of the identified crimes; (iii) the Prosecutor's error in correctly appreciating the nature of the identified crimes; (iv) the Prosecutor's error in fact in properly assessing the manner of commission of the identified crimes, in particular with respect to the question whether the identified crimes may have been "systematic or resulted from a deliberate plan or policy to attack, kill or injure civilians"; and (v) the Prosecutor's error in determining the impact of the identified crimes materially affects the validity of the Prosecutor's conclusion that the potential case(s) arising from the situation referred to her by the Comoros would not be of sufficient gravity to justify further action by the Court within the meaning of article 17(1)(d) of the Statute.

    50. Accordingly, the Chamber requests the Prosecutor to reconsider her decision not to initiate an investigation...

    51. As a final note, the Chamber cannot overlook the discrepancy between, on the one hand, the Prosecutor's conclusion that the identified crimes were so evidently not grave enough to justify action by the Court, of which the raison d'être is to investigate and prosecute international crimes of concern to the international community, and, on the other hand, the attention and concern that these events attracted from the parties involved, also leading to several fact-finding efforts on behalf of States and the United Nations in order to shed light on the events. The Chamber is confident that, when reconsidering her decision, the Prosecutor will fully uphold her mandate under the Statute..."

    ->International Criminal Court "Partly Dissenting Opinion of Judge Peter Kovacs, ICC-01/13-34-Anx 16-07-2015", July 16, 2015:
    "...31. The facts of the situation cast some doubt as to whether the constitutive elements of the war crimes of wilful killing (article 8(2)(a)(i) of the Statute) or wilfully causing great suffering (article 8(2)(a)(iii) of the Statute) are met. The injuries sustained by the individuals on board the Mavi Marmara were apparently incidental to lawful action taken in conjunction with protection of the blockade.

    32. According to the San Remo Manual applicable to armed conflicts at sea,... a ship that is non-violent and not resisting may nonetheless be captured because of its attempting to breach a blockade. It is clear that not only was it the Mavi Marmara's intention to breach the blockade, but this was its main purpose, as an act of protest. With this in mind, Israeli forces had a right to capture the vessel in protection of their blockade. Furthermore, irrespective of this right, it was a logical reaction. Faced with a potential breach of the blockade, the IDF acted out of necessity.
    ...
    34. As the Prosecutor correctly acknowledged, '[I]f it is assumed that Israel's blockade of Gaza was legal, Israel was entitled to enforce the blockade by these means. Subject to the issue of prior warning, and clear and intentional failure by the vessels to stop or other forms of resistance, Israel could lawfully direct an attack against relevant vessels of the flotilla. For the relevant period, those vessels would lose the protection to which they were otherwise entitled as merchant or similar vessels'[FN. 31]. A vessel that loses its civilian status in such a way becomes a legitimate military objective 'whose destruction [...] offers a definite military advantage because [...] the effectiveness of the blockade is preserved'.[FN. 32]

    35... Based on the facts as reported by various commissions of inquiry, and as reflected in the Prosecutor's report, it appears that the IDF soldiers, upon boarding the vessel, were met with direct violent resistance from a large group of passengers who had gathered on the roof of the ship. The passengers attempted to impede the soldiers with use of their fists, knives, chains, wooden clubs, iron rods, and slingshots with metal and glass projectiles.[FN. 34] At the initial stage of boarding the vessel, it appears that three soldiers were attacked, captured, and taken to the hold of the ship.[FN. 35] Additional information available also indicates that 9 IDF soldiers were seriously injured by passengers, two having been shot.[FN. 36] It was this violent resistance that prompted the use of force by IDF soldiers...
    ...
    39. Taking into consideration the circumstances surrounding the boarding of the Mavi Marmara by the IDF forces as described above, I find it unnecessary for the Prosecutor to open an investigation with regard to the limited number of acts presented as wilful killing under article 8(2)(a)(i) of the Statute or wilfully causing great suffering under article 8(2)(a)(iii) of the Statute..."

  • International Criminal Court "Notice of Appeal of "Decision on the request of the Union of the Comoros to review the Prosecutor's decision not to initiate an investigation" (ICC-01/13-34)", July 27, 2015

    "1. The Office of the Prosecutor appeals Pre-Trial Chamber I's decision of 16 July 2015, requesting reconsideration of the Prosecutor's decision, pursuant to article 53 of the Rome Statute, not to initiate an investigation into the situation on registered vessels of the Union of the Comoros, the Hellenic Republic, and the Kingdom of Cambodia.[FN. 1]
    ...
    24. The Decision further erred in law by failing to provide sufficient reasoning.[FN. 41] The Decision fails to address arguments-and at least one essential fact-relevant to its core findings, as well as sometimes appearing to misapprehend or mischaracterise the basis of the Prosecution's reasoning in its article 53(1) determination and submissions. In particular, the Decision failed to consider or to give adequate reasoning regarding:

    ...(iii) the unique context of violent resistance aboard the Mavi Marmara..."
  • International Criminal Court "Decision on the admissibility of the Prosecutor's appeal against the "Decision on the request of the Union of the Comoros to review the Prosecutor's decision not to initiate an investigation," (ICC-01/13-51), November 6, 2015

    "Decision

    1. The Prosecutor's appeal is dismissed as inadmissible...

    50. ... Although the Appeals Chamber has some sympathy with the Prosecutor's submissions regarding "the language and tone" of the Impugned Decision,[FN. 124] it does not consider such factors to alter the nature of the proceedings. The Impugned Decision is a request to the Prosecutor to reconsider her decision not to initiate an investigation– and, as set out more fully below, the ultimate decision as to whether to do so is for her. While the Impugned Decision might conceivably have an effect on the admissibility of potential cases arising out of the situation, in that it could potentially lead to the Prosecutor coming to a different conclusion in relation to admissibility (pursuant to article 53(1)(b)) at the time that she reconsiders her initial decision not to initiate an investigation, the Impugned Decision is not by its nature a decision determining admissibility..."
  • -> International Criminal Court "Joint dissenting opinion of International Criminal Court Appeals Chamber Judge Silvia Fernández De Gurmendi and Judge Christine Van Den Wyngaert, (ICC-01/13-51-Anx), November 6, 2015
    "1. We regret that we are unable to join the majority of the Appeals Chamber in relation to the sole question that arises in this decision,[FN. 1] namely whether this particular appeal is admissible...

    20. [I]n the present case, the Pre-Trial Chamber did not specifically rule that the potential case(s) arising in this situation were admissible.[FN. 31] However, it clearly found fault with all of the main reasons that the Prosecutor had advanced in her determination that there were no admissible cases in the situation; and it provided reasons to indicate that the contrary conclusion would be true, namely that there would indeed be admissible cases in the situation...

    38... We would therefore declare this appeal to be admissible, without prejudice to our subsequent consideration of its merits."

  • International Criminal Court "Notice of Prosecutor's Final Decision under Rule 108(3) ICC-01/13-57: Situation on Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia", November 29, 2017

    "1. On 16 July 2015, under article 53(3)(a) of the Statute, the Pre-Trial Chamber requested the Prosecution to reconsider its article 53(1) determination of 6 November 2014 concerning this situation. This request came into force on 6 November 2015, when the Appeals Chamber lifted its order of suspensive effect.

    2. Having completed its reconsideration, and reached the 'final decision' required by rule 108(3), the Prosecution hereby notifies the Pre-Trial Chamber, and those who participated in the review, of its conclusion and the reasons for its conclusion. These are set out publicly in Annex 1 to this notice..."
  • International Criminal Court "Annex 1 to the Notice of Prosecutor's Final Decision under Rule 108(3)", November 29, 2017

    "Introduction

    1. Under rule 108(3) of the Rules of Procedure and Evidence, the Prosecution hereby issues its 'final decision' concluding the preliminary examination of the situation on registered vessels of the Union of the Comoros, the Hellenic Republic of Greece, and the Kingdom of Cambodia. This final decision is issued pursuant to the Pre-Trial Chamber's request ('Request'), under article 53(3)(a) of the Rome Statute, for the Prosecution to reconsider its original report ('Report'). The conclusions of this final decision are based on the outcome of that reconsideration.

    2. Having carefully analysed the Request, the Report, and the other information available, the Prosecution remains of the view that there is no reasonable basis to proceed with an investigation under article 53(1) of the Statute. As such, an investigation may not be initiated, and the preliminary examination must be closed.[FN. 1] A 'decision not to investigate' is no less consistent with the Prosecution's mandate under the Statute than a 'decision to investigate'.[FN. 2] To be clear, the Prosecution will investigate and prosecute when it properly considers the Statute permits and/or requires it to do so. This is the mandate given by the States Parties in article 53.

    3. The Prosecution regrets that it cannot concur in much of the Request's analysis. As the Appeals Chamber has since emphasised, the Request is non-binding and does not fetter the Prosecution's exercise of discretion under rule 108(3). The Appeals Chamber also emphasised that the Prosecution's independent reconsideration will constitute the 'final decision' on the matter.[FN. 3] To this extent, requests to the Prosecution under article 53(3)(a) impose an obligation only of process, and not of result.[FN. 4]

    4. Out of an abundance of caution-and mindful of the general interest, wherever possible, in respecting the legal reasoning of judicial orders and decisions of the Court, notwithstanding the unique circumstances of article 53(3)(a)-the Prosecution sought to appeal the Request and thus to seek independent confirmation of the applicable law.[FN. 5] Considering that the Appeals Chamber has confirmed that it lacks jurisdiction to hear such an appeal, the Prosecution has assessed for itself the merits of the Request in undertaking its reconsideration. Indeed, the Appeals Chamber emphasised that the Prosecution 'retains ultimate discretion over how to proceed'.[FN. 6] Moreover, since the Prosecution is obliged by the Statute to 'act independently as a separate organ of the Court',[FN. 7] it can only act either for reasons which the Prosecution itself considers well founded or pursuant to a lawful binding order under the Statute. Where the Court has no power to make such a binding order, as now, the Prosecution may act only on the basis of its own independent view of the law and the facts.

    5. Furthermore, although the progress of the litigation before the Pre-Trial Chamber led to increasing focus on the factual minutiae of the allegations concerning the events aboard the Mavi Marmara,[FN. 8] the Prosecution remains convinced that is not the proper focus of review under article 53(3) of the Statute. Rather, the focus should be whether the Prosecution, in its original article 53(1) determination, correctly applied the law, acted fairly, and reasonably assessed the available information. The Prosecution's reconsideration has been conducted on such a basis.

    6. The Prosecution further notes that Counsel for the Comoros and the participating victims, both before the Pre-Trial Chamber and in private communications, have asserted that new facts and information have become available since the publication of the Report. Notwithstanding the merits of the Request, such new facts or information may independently justify the Prosecution's exercise of discretion under article 53(4) to reconsider a decision whether to investigate.[FN. 9] Yet having analysed these claims, however, the Prosecution does not consider that the new facts or information require or justify departure from the conclusions in the Report.

    7. Although for these reasons the preliminary examination of this situation is now closed, the Prosecution reaffirms that, in accordance with article 53(4) of the Statute, it 'may' at any time reconsider its decision, based on new facts or information.

    Reasoning

    8. This final decision addresses three core issues. Given the extensive analysis in the Report, this final decision addresses factual matters only to the extent necessary
    • First, whether the reasoning in the Request discloses a well founded basis to reach a different conclusion than that contained in the Report.
    • Second, in any event, whether the Prosecution considers there is a well founded basis to reach a different conclusion than that contained in the Report based, among other factors, on the arguments raised by the Comoros and the victims before the Pre-Trial Chamber.
    • Third, and finally, whether there is a well founded basis to reach a different conclusion than that contained in the Report based on any new facts or information which have become available since publication in November 2014 to provide 'the reasons for the conclusion', as required by rule 108(3).
    9. The Prosecution concludes that there remains no reasonable basis to proceed with an investigation of this situation.

    10. The Prosecution reaffirms, however, that there is a reasonable basis to believe that war crimes were committed by some members of the Israel Defence Forces ('IDF') during and after the boarding of the Mavi Marmara on 30 May 2010.

    11. Although the Prosecution maintains its view that no potential case arising from this situation would be admissible before this Court-which is the only issue in dispute with the Comoros-this does not excuse any crimes which may have been perpetrated.

    I. On the basis of the Request, there is no reasonable basis under the Statute to proceed with an investigation..."
  • International Criminal Court Public Redacted Version of "Application for Judicial Review by the Government of the Union of the Comoros", February 26, 2018

    "1. Counsel for the Government of the Union of the Comoros ('the Comoros') submits this Application for judicial review to Pre-Trial Chamber I pursuant to Article 53(3)(a) and Rules 107-108 in respect of the two Decisions that the Prosecutor rendered on 29 November 2017 in which she declined in both to open an investigation in the present Situation,[FN. 1] namely (i) the Prosecutor's Reconsideration Decision issued at the direction of the Pre-Trial Chamber I in its Decision of 16 July 2015 in accordance with Articles 17(1), 53(1) and 53(3)(a), and Rule 108(3) ('OTP Reconsideration Decision');[FN. 2] and, (ii) the Prosecutor's Decision on new facts and information received in accordance with Articles 17(1), 53(1) and Article 53(4) ('OTP Decision on New Evidence').[FN. 3] The Prosecutor has made clear that the OTP has handed down each of these separate decisions, and has accordingly set them out in two distinct sections in the OTP's filing: Parts I and II for the OTP Reconsideration Decision and Part III for the OTP Decision on New Evidence.
    ...
    3. In both OTP Decisions of 29 November 2017, the sole issue that is again relied on by the Prosecutor to refuse to open an investigation into the war crimes that the Chamber confirmed were committed by the IDF is that of gravity. The Prosecutor in both Decisions found that it has not been established that the crimes are sufficiently serious to warrant further investigation by the ICC, and that they could instead be investigated by domestic courts. There is no evidence, and none cited by the Prosecutor, that these same crimes are in fact being investigated by the Israeli national authorities. The perpetrators of the crimes are thus not subject to any criminal investigation and there is realistically no prospect of them ever being investigated for the same crimes as those before the ICC.

    4. It is for this reason that the Comoros referred the matter as a State Party to the ICC Prosecutor for investigation. As the Pre-Trial Chamber noted in its Decision to Reconsider, the attack by the IDF on the Mavi Marmara, a civilian vessel with only civilian passengers, was an international controversy of great significance and concern which threatened diplomatic relations and peace in the Middle East, and thus which engaged the UN at the most senior level including through two particularly high-level inquiries and reports.[FN. 7] There has understandably been a reasonable expectation that the world's criminal court would at least conduct further investigations into this matter when the Israeli national jurisdiction has completely failed to act, and instead exonerated the alleged perpetrators.

    5. ... As submitted herein, the OTP has again committed fundamental errors that are subject to review in its two new Decisions...
    ...
    132. For all of these reasons, the Comoros requests the Pre-Trial Chamber to review the two new OTP Decisions not to open an investigation and to direct the Prosecutor to reconsider her Decisions in light of the discernable errors in each of them."
  • International Criminal Court Decision by the Pre-Trial Chambers on the Request for an Extension of Time, March 2, 2018

  • International Criminal Court Prosecution's Response to the Government of the Union of the Comoros' "Application for Judicial Review" (ICC-01/13-58) (Lack of Jurisdiction), March 13, 2018

    "1. The Pre-Trial Chamber should dismiss the Government of the Union of the Comoros' application in limine for lack of jurisdiction.[FN. 1] As the Appeals Chamber has already confirmed-and in precisely this situation [FN. 2]-the Prosecutor's "final decision" under rule 108(3) is just that: a final decision. The Statute grants no power to the Pre-Trial Chamber to review such a decision, nor to review the Prosecutor's independent exercise of discretion under article 53(4). Nor is this surprising, as such powers would contradict the careful approach taken by the drafters of the Rome Statute in triangulating between the interests of States in referring situations to the Court, the need for a due measure of judicial oversight, and the need for prosecutorial independence.

    2. Since the Pre-Trial Chamber lacks jurisdiction to hear the Application, the Prosecution considers it inappropriate to delay its submission until expiry of the extended deadline ordered by the Pre-Trial Chamber.[FN. 3] Rather, it files this response immediately, in order to allow the legal representatives for the victims fair opportunity to address the Prosecution's jurisdictional objection, and in the interest of judicial economy. Only if the Pre-Trial Chamber rules that it has jurisdiction to hear the Application-and on what basis-should there be any further discussion of this situation on its merits.

    3. Indeed, these matters have already received detailed and extensive scrutiny (amounting to hundreds of pages) from all parties involved, including the Prosecution, which demonstrates that the Statute's procedures have been properly and fairly applied. Such an exercise cannot-and should not-be endlessly repeated. The jurisdiction of perpetual review proposed by the Comoros will distort the statutory framework, and burden the Court in executing its mandate. The selective nature of the Court's legal framework necessarily presupposes that some situations-including situations referred to the Court-will not proceed to investigation. Such determinations must be made with due finality..."
  • International Criminal Court Application by the Government of the Comoros regarding the Pre-Trial Chamber's Scheduling Order, March 15, 2018

  • International Criminal Court Request on behalf of the Government of the Union of the Comoros in respect of Scheduling Order, April 11, 2018

  • International Criminal Court Decision by the Pre-Trial Chamber on the "Application for Judicial Review by the Government of the Union of the Comoros", November 15, 2018

    "II. INTRODUCTION
    ...
    A. The 16 July 2015 Decision
    25. In the 16 July 2015 Decision, Pre-Trial Chamber I considered that, under article 53(3)(a) of the Rome Statute (the "Statute"), 'the scope of review is limited to the issues that are raised in the request for review and have a bearing on the Prosecutor's conclusion not to investigate'.[FN. 39] It further clarified that ,'[i]n the presence of several plausible explanations of the available information, the presumption of article 53(1) of the Statute, as reflected by the use of the word 'shall' in the chapeau of that article, and of common sense, is that the Prosecutor investigates in order to be able to properly assess the relevant facts'.[FN. 40]

    26. The review carried out by Pre-Trial Chamber I led to the conclusion that the Prosecutor had committed five errors in deciding that the potential case(s) arising from the situation referred to her by the Comoros would not be of sufficient gravity to justify further action by the Court within the meaning of article 17(1)(d) of the Statute, namely: '(i) the Prosecutor's failure to consider that the persons likely to be the object of the investigation into the situation could include those who bear the greatest responsibility for the identified crimes; (ii) the Prosecutor's error as to how the scale of the identified crimes can be taken into account for the assessment of the gravity of the identified crimes; (iii) the Prosecutor's error in correctly appreciating the nature of the identified crimes; (iv) the Prosecutor's error in fact in properly assessing the manner of commission of the identified crimes, in particular with respect to the question whether the identified crimes may have been 'systematic or resulted from a deliberate plan or policy to attack, kill or injure civilians'; and (v) the Prosecutor's error in determining the impact of the identified crimes'.[FN. 41]

    27. On this basis, Pre-Trial Chamber I requested the Prosecutor to reconsider her decision not to initiate an investigation.[FN. 42]

    B. The 29 November 2017 Decision
    28. Following the 16 July 2015 Decision, the Prosecutor issued her 29 November 2017 Decision. This decision is divided into three parts.

    29. The first part of the 29 November 2017 Decision addresses whether the 16 July 2015 Decision "discloses a well founded basis to reach a different conclusion than that contained in the" 6 November 2014 Decision.[FN. 43]

    30. In this regard, the Prosecutor avers that, based on her "independent analysis of the law", she 'cannot concur with the majority' of Pre-Trial Chamber I. The Chamber highlights the following arguments invoked by the Prosecutor in support of her position. The Prosecutor explains that she 'does not consider that [...] [one of the majority's conclusions] is correct' and that she 'doubts this logic'. She further states that, given her 'disagreement with the majority of Pre-Trial Chamber I's interpretation [of a provision], which directly affects the correctness of the legal standard applied in the Report, the Prosecution cannot concur in the basic premise of the Request'. In a similar manner, she claims that the 16 July 2015 Decision 'fails to provide sufficient reasoning with respect to at least five legal or factual issues in the Report [which] materially affects the analysis in' this Decision. The Prosecutor is also of the view that the 16 July 2015 Decision 'does not address [certain issues]'. She, in addition, argues that this Decision 'appears to contain insufficient reasoning or misunderstandings material' to certain facts or arguments. Finally, the Prosecutor submits that '[h]ad the Pre-Trial Chamber correctly interpreted the legal standard [...] it would not have issued the' 16 July 2015 Decision.
    ...
    111. The Chamber notes, however, that after deciding not to follow the 16 July 2015 Decision, the Prosecutor reconsidered the 6 November 2014 Decision on the basis of the submissions made by the parties during the litigation before the Pre-Trial Chamber. The Prosecutor, thus, claims the authority to disregard a judicial decision and, in its place, to reconsider her decision not to proceed with an investigation on the basis of submissions provided in the context of proceedings to which she herself was a party. Such an approach is evidently unsustainable.
    ...
    3. Conclusion
    117. In light of the foregoing, the Chamber considers it appropriate to order the Prosecutor to reconsider her 6 November 2014 Decision in accordance with the 16 July 2015 Decision. Specifically, the five main errors identified by the Pre-Trial Chamber must serve as the basis for the reconsideration of her 6 November 2014 Decision. In other words, the Prosecutor must demonstrate in detail how she has assessed the relevant facts in light of the specific directions contained in the 16 July 2015 Decision.
    ...
    119. As a final point, the Chamber underlines that this matter has been under consideration for an extended period of time. As recently recalled by this Chamber, preliminary examinations must be concluded within a reasonable time.[FN. 151] This has manifestly not been the case for the preliminary examination in the situation at stake. As a matter of fact, it took more than two years, after the 6 November 2015 Appeals Chamber decision declaring her appeal inadmissible, for the Prosecutor to issue her 29 November 2017 Decision, which, as set out above,[FN. 152] wilfully refrains from complying with the 16 July 2015 Decision.

    120. This is irreconcilable with the Prosecutor's duty to reconsider her decision 'as soon as possible'..."

    -> International Criminal Court Partly Dissenting Opinion of Judge Peter Kovacs on the "Application for Judicial Review by the Government of the Union of the Comoros", November 15, 2018
    "1. I concur with my colleagues on most of the procedural decisions undertaken, namely to reject the 15 March 2018 Application of the Government of the Union of the Comoros (GoC) and the 11 April 2018 GoC Request as moot.[FN. 1] I also agree with the Majority to dismiss in limine the '23 February 2018 Application' with respect to the Prosecutor's reconsideration pursuant to article 53(4) of the Statute.[FN. 2] However, I cannot follow the Majority in granting the '23 February 2018 Application in so far as it is based on article 53(3)(a) of the Statute',[FN. 3] or finding that the '29 November 2017 Decision' is not final within the meaning of rule 108(3) of the Rules.[FN. 4] This certainly leads to the inevitable conclusion that I also cannot agree with the Majority's conclusion requesting the Prosecutor to reconsider anew the 6 November 2014 Decision and 'notify this Chamber [...] of her final decision [...]'.[FN. 5] To put it differently, it is my strong belief that the 23 February 2018 GoC Application must be dismissed in limine in so far as it relates to a new reconsideration of the Prosecutor's 6 November 2014 Decision for the reasons set out below.
    ...
    5. In the 23 February 2018 Application, the GoC identified at least four main errors in what it qualifies as two main decisions emanating from the Prosecutor's 29 November 2017 Final Decision.

    6. The GoC developed the entirety of its submission on the basis of these alleged errors. According to the GoC, the Prosecutor erred in: 1. '[...] arguing as its first position that [it] is not required to address the errors the Chambers found committed in the [6 November 2014 Decision] [...]'; 2. '[...] misapplying the 'reasonable basis' standard in respect of the factors under Article 17(1)(d) relevant to the gravity assessment [...]'; 3. '[...] the [29 November 2017 Final Decision] as she failed to apply her mind to, and address, the errors identified by the Chamber, and indeed committed the same errors again and new errors [...]'; and 4. '[...] its Decision on New Evidence [emanating from the 29 November 2017 Final Decision] in failing to take into account or give any weight to the new evidence which concerned the particular factors relevant to the gravity assessment pursuant to Articles 17(1)(d) and 53(1); the Prosecutor misapplied the law, and acted irrationally and unreasonably in the determination of gravity [...]'.[7] The GoC further argued under this last point that '[o]n any reasonable view, there is significant body of new evidence consistent with heightened gravity (including two independent expert reports) [...] which any reasonable prosecutor would regard as showing a reasonable basis to investigate further [...]'.[FN. 8]
    ...
    8. In this respect, I strongly believe that the GoC's alleged errors put forward in the 23 February 2018 Application mainly pertain to the merits. Thus, the question which the Chamber is called upon to answer is not whether the Prosecutor interpreted the reasonable basis standard correctly or to what extent she did so. Neither is the question whether the Prosecutor gave sufficient weight to the additional evidence submitted by the GoC and the victims in reconsidering the 6 November 2014 Decision or in taking her decision on the new evidence submitted as part of the 29 November 2017 Final Decision.

    9. Rather, the core of the present exercise revolves around whether the Chamber is entitled to conduct another review of the 29 November 2017 Final Decision, whether one considers it to be one decision or two decisions, as the GoC suggests. In other words, regardless of the eventual correctness of the arguments put forward by the GoC in its 23 February 2018 Application, the Chamber's role at this stage is first to decide whether or not these two decisions emanating from the 29 November 2017 Final Decision are subject to judicial review under article 53(3)(a) of the Statute and the rules related thereto.

    10. If the answer is in the affirmative then the Chamber may delve into the merits in order to identify any potential errors on the part of the Prosecutor as the GoC indicates. However, if the answer is in the negative – as I believe in the case sub judice – then the Chamber should not engage with the merits of the 29 November 2017 Final Decision. Instead, the Chamber should accept the Prosecutor's decision as final, ending the entire review process. It is for this latter reason that I do not follow my colleagues in assessing the reconsideration process conducted by the Prosecutor, as this exercise disregards the nature of the 29 November 2017 Decision, being a final one. Such radical position on the part of the Majority does not only lead to an unwarranted new reconsideration process of the 6 November 2014 Decision, but might also open the door for endless reconsideration requests, even in relation to different situations before the Court.
    ...
    19. Once the Prosecutor has reached her conclusion as demonstrated by the material available before the Chamber, the decision of the Prosecutor becomes final'. This is clear from the language provided in rule 108(3) of the Rules, which reads, in the relevant part: '[o]nce the Prosecutor has taken a final decision' (emphasis added). The inclusion of the word 'final' in rule 108(3) of the Rules is not arbitrary. It means that the decision becomes final. It is the 'court's last action that settles the rights of the parties and disposes of all issues in controversy'.[FN. 17]..."