Rodney Dixon QC on the Mavi Marmara case and seeking justice at the ICC

Rodney Dixon QC

In November 2014, the Chief Prosecutor of the International Criminal Court (ICC) Fatou Bensouda held that there was a reasonable basis to believe that war crimes had been committed on board the Mavi Marmara ship, but concluded they were not of sufficient gravity to warrant a formal investigation. It was the first time the ICC had refused to open an investigation when requested to do so by a States Party.

The Mavi Marmara led the six vessels of the Gaza Freedom Flotilla aid convoy that attempted to break the naval blockade of the Gaza Strip on 31 May 2010. The boats were in international waters when Israeli naval commandos approached by helicopter and speedboat, boarded the Mavi Marmara and killed nine people on board, seriously injuring a number of others. A United Nations fact-finding mission later revealed that five of the people on board were shot in the head at close range.

For the families of the victims and the activists on board, the Prosecutor’s decision was disheartening and did little to alleviate concerns that Israel continues to commit war crimes with impunity. It was a relief, therefore, when the decision was appealed and the Pre-Trial Chamber of the ICC directed Bensouda to reconsider her decision. “We argued on behalf of the Comoros and the victims that her reasoning in finding that the case was not serious enough was fundamentally flawed, as we set out in our application for review of the decision, and which was granted by the Chamber,” says Rodney Dixon QC, the barrister who is representing the vast majority of passengers on board the six ships, the ship owners and the Government of Comoros. The Mavi Marmara was registered in the Comoros, a State Party to the ICC, who referred the case.

“The way in which she decided this matter was erroneous as a matter of law and fact,” Dixon continues, explaining there were many aspects of the case Bensouda overlooked. “The Pre-Trial Chamber noted that she had reached conclusions prematurely without actually conducting an investigation. That’s the whole purpose of the investigation, to determine whether there’s sufficient evidence and the Prosecution had ahead of that taken a particular view on the evidence.”

“As was argued before the Chamber, it was improper for a prosecutor to proceed in that way; no reasonable prosecutor should do that,” he adds later, reflecting on Bensouda’s decision. In the past Bensouda has drawn attention to the limits of her jurisdiction over Israel and Palestine. Palestine became a formal member of the ICC in April last year but investigations can only go as far back as Israel’s July 2014 assault on Gaza dubbed Operation Protective Edge. Yet throughout the case she has had jurisdiction over Comoros. “On behalf of the victims we have stressed that the Prosecutor should seize this opportunity, that’s what proactive prosecutors could do, they look for ways to use the law most effectively to promote justice and the Prosecutor has this unique chance to act if she wanted to and she shouldn’t waste that valuable opportunity,” says Dixon.

The case is now at a critical point – Bensouda has been directed to reconsider and everybody is awaiting her decision. She can refuse, but Comoros could again seek a review.

Since Bensouda first refused a formal investigation, international bodies, organisations and lawyers have helped gather evidence that could be used in a formal investigation. “She’s had a lot of the work done for the Prosecution that could be relied – the Prosecution has received a solid and compelling package of evidence. Based on that the Prosecutor should launch an investigation without having to expend unnecessary resources and she could call on many other organisations to help her if resources were an issue. On behalf of the victims we sincerely hope that she does now finally open an investigation,” says Dixon.

Specifics, such as the fact that the ships were attacked in international waters, raise the gravity of the case. But the attack on the ships shouldn’t be separated from the wider context in which it took place. “You can’t isolate this artificially from what’s happening in the wider conflict and the occupation and the blockade of Gaza. That was a forceful argument that we advanced in the review, that you can’t view this is an incidental, separate event. It’s clearly connected to the wider conflict and blockade,” says Dixon. He added: “That this conflict is in that part of the world is undoubtedly serious enough to warrant the ICC’s attention.”

One of the arguments made by the legal team representing the Mavi Marmara victims was the wider impact of the crimes if Israel was not held accountable. “We argued in the review that by not investigating these cases the ICC forgoes the rare opportunity to seek to deter similar, future attacks,” says Dixon. The Prosecutor’s failure to start the investigation before Protective Edge occurred – the July 2014 Israeli war on Gaza which killed over 2,000 Palestinians, mainly civilians – meant the “deterrence factor” was lost: “The fact that she could have been actively investigating the IDF for the attack on the Flotilla might have had an impact on whether the IDF were prepared to conduct the 2014 operation in the way that they did.”

If the case is re-examined Bensouda only has jurisdiction over what happened on the ship, not for what happened when the people on board were taken to Israel, detained and interrogated, because they were no longer on Comoros territory. “But as a matter of general criminal law you can always use surrounding evidence that’s outside of the jurisdiction to prove what’s happening within the jurisdiction,” says Dixon. “Even though the commanders were not on the ship they could still be held responsible for what happened on board. And you could certainly examine the contextual circumstances to understand the plan and the policy behind the attack. The Prosecutor could consider the wider evidence as being relevant to how and why the crimes were committed.”

Justice can also be pursued in national courts. Last year a Spanish judge pressed the government to pursue legal proceedings on behalf of the three Spanish passengers that were on board the Mavi Marmara, whilst in Turkey a criminal trial in absentia has begun. UK police have been asked to investigate the case and exercise universal jurisdiction regarding torture and grave breaches of the Geneva Conventions to arrest those involved when they travel to the country, according to Dixon. That said, cases at the ICC attract more international attention, and the Prosecutor can seek co-operation through states and the Security Council to arrest people wherever they travel.

Fatou Bensouda has been criticised for only investigating inside Africa and her failure to examine the Mavi Marmara case has not dispelled any of these criticisms. “I think it does affect perceptions and the integrity of the court when there is strong compelling evidence that should at least be investigated and that is refused,” says Dixon, “particularly where, as the judges said, this was an operation that gained significant international attention, there were two UN reports and investigations on it.”

“It is most important that there’s consistency and transparency in the decisions being made about whether to investigate a particular situation or not and that these decisions can be scrutinised by the Court.”

Written by Amelia Smith

Published in Middle East Monitor