Mavi Marmara Case Update: Prosecutor Files Notice of Appeal

Last week I argued here that the ICC Prosecutor should appeal or refuse to follow the Pre-Trial Chamber’s (PTC) majority order to reconsider her decision not to open a formal investigation into the Mavi Marmara incident. On Monday, the Prosecutor filed her notice of appeal, citing three grounds: (1) the PTC showed inadequate deference to the Prosecutor, who is best-situated to assess gravity of potential situations at the investigation-opening stage; (2) the PTC erred in its application of the gravity test, relying on evidence taken out of context and in isolation; and (3) the PTC failed to address certain, specific arguments and pieces of evidence put forth by the Prosecution.

The Prosecutor has thus signaled her intent to attack the core of the PTC’s approach, arguing that the PTC institutionally overstepped its role and in addition so diluted the gravity test as to render it almost meaningless. The notice of appeal also means that it is almost certain that the Prosecutor will never accede to opening an investigation into the Mavi Marmara incident. Even if the Appeals Chamber refuses to hear the appeal on jurisdictional grounds, or (and this is very hard to imagine) it hears the appeal and sides with the majority of the PTC, the Prosecutor still has the final word on whether to open an investigation, as I outlined in my post last week. Given the Prosecutor’s very strong rejection of the PTC’s reasoning in her notice of appeal, it is difficult to imagine the Prosecutor ever changing her mind.

Monday’s document is just the notice of appeal. The Prosecution will have 21 days from the date of the PTC decision to file its appeal and then Comoros and the victims will have 21 days to respond before the Appeals Chamber renders its decision.

  

About the Author(s)

Alex Whiting

Professor of Practice, Harvard Law School; former federal prosecutor at the Department of Justice and the U.S. Attorney's Office in Boston; served as Investigations Coordinator and Prosecutions Coordinator at the International Criminal Court. Follow him on Twitter (@alexgwhiting).