The Flotilla Case before the ICC: The Need to Do Justice While Keeping Heaven Intact

This article analyses the decision of the ICC Pre-Trial Chamber of 16 July 2015 in which it requested the Prosecutor to reconsider its decision not to initiate an investigation into the situation of the registered vessels of the Union of the Comoros, Greece and Cambodia. In 2010, the Israeli Defense Forces (IDF) had intercepted a humanitarian aid flotilla that was trying to breach one of its naval blockades. The Prosecutor deemed the case of insufficient gravity to initiate an investigation. By requesting the Prosecutor to reconsider its decision, the Pre-Trial Chamber created a precedent vis-à-vis the boundaries of prosecutorial discretion. This article addresses the test of Article 53(1) ICC Statute and inquires whether the Pre-Trial Chamber applied a correct standard of review. Whilst concluding that the Chamber erred in this standard, the authors introduce a standard of review that anticipates the interrelationship between prosecutorial discretion and judicial review.

Affiliations: 1: Professor of Politics of International Law, University of Amsterdam, Amsterdam, The Netherlands; Visiting Professor of International Criminal Law, Shandong University, Jinan, China; lawyer, international criminal law, Knoops Advocaten, Amsterdam, The Netherlands; 2: Professor of Human Rights, Utrecht University, Utrecht, The Netherlands; Director, Netherlands School of Human Rights Research