Tagged: material error

ICC Prosecutor Asked to Reconsider a Matter Involving Israel’s Blockade of Gaza

POST WRITTEN BYProf. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

On July 16, 2015, a 2-1 majority of Pre-Trial Chamber I issued a strongly worded decision finding what it termed numerous “material” errors in the ICC Prosecutor’s decision not to open a formal investigation of war crimes allegedly committed by members of the Israeli Defense Forces (IDF) in May 2010 when they intercepted and boarded ships that were attempting to penetrate Israel’s naval blockade of Gaza.

As I mentioned in an earlier post, on November 6, 2014 the ICC Prosecutor issued a report explaining that after months of review, she declined to open a formal investigation of the matter. The report was issued under Article 53(1) of the Rome Statute in response to a request of ICC State Parties, including the Union of Comoros, whose vessels were boarded by the IDF during the May 2010 incident. The report concluded that although there was a reasonable basis to believe that members of the IDF willfully killed ten of the 500+ passengers on one of the vessels, caused serious injury to several others, and committed outrages upon personal dignity of others, a formal investigation was unwarranted because the crimes involved, given the surrounding circumstances, would fail to meet the gravity requirement of Article 17(1)(d) of the Rome Statute.

In January 2015, the Union of Comoros invoked the opportunity provided by Article 53(3)(a) to request the Pre-Trial Chamber seized of the matter to review the Prosecutor’s decision not to proceed and to request reconsideration of the decision. Comoros’s application challenged several conclusions in the Prosecutor’s report.

In its July 16, 2015 decision, the Chamber’s majority discounted some of these challenges but agreed with several others regarding the Prosecutor’s alleged failure to properly address factors relevant to the gravity determination.

Addressing standard of review, the majority stated that a request pursuant to Article 53(3)(a) requires a Chamber “to exercise independent judicial oversight” and apply “exacting legal requirements.” It added that “[i]n the presence of several plausible explanations of the available information,” the Prosecutor must open an investigation so that she can “properly assess the relevant facts.”

Applying this standard, the majority faulted the Prosecutor for at times deciding against investigation of matters on which there were conflicting claims. Of particular importance, the majority suggested that the Prosecutor may have “willfully ignored” credible evidence that the IDF fired upon one of the vessels prior to boarding. Such evidence, if established, would support the proposition that there was a systematic plan to attack civilians on that vessel.

Accordingly, the Chamber issued a request to the Prosecutor to reconsider her decision not to investigate the situation.

The Chamber’s decision involves procedural issues regarding a Chamber’s Article 53(3)(a) review that will have to be resolved in the future. In his dissenting opinion, Judge Péter Kovács argued that, among other failings he perceived, the majority “introduced for the first time a standard for reviewing negative decisions undertaken [by a prosecutor pursuant to Article 53(1)] without explaining the legal basis for its endorsement.” In Judge Kovács’s view, “the Pre-Trial Chamber’s role is merely to make sure that the Prosecutor has not abused her discretion in arriving at her decision not to initiate an investigation ….” Reviewing the evidence and submissions, he concluded that the Prosecutor did not abuse her discretion in this matter.

First Department Reverses Murder Conviction on Erroneous Jury Instruction

In People v. Minor, the Appellate Division, First Department unanimously reversed a second degree murder conviction on the ground that the judge erred in her instruction on assisted suicide defense to murder.

In Minor, the defendant had been charged with murdering  Jeffrey Locker,  a motivational speaker who was deeply in debt  and who was found dead in his car from multiple stab wounds.  The defendant claimed Locker had enlisted his aid to make his suicide look like a murder so his family could recover his recently purchased $12 million of life insurance.  The defendant allegedly held a knife on the steering wheel as Locker leaned forward into it.  When the defendant left the car, Locker was still alive.  Based on expert testimony that the wounds were inconsistent with the defendant’s story, the prosecution claimed that the defendant had murdered the victim.

In her instructions, the trial judge attempted to explain the affirmative defense of assisted suicide by stating that while murder was an “active,” assisted suicide was not.  When the jury asked for additional clarification the judge, over objection, responded with further instructions that failed to clarify the distinction.  The First Department reversed the conviction.  It held that neither the term “active” nor its opposite, “passive” are present in the statute and that the instructions were confusing and misleading.

Read People v. Minor, No. 10291, 2013 N.Y. Slip Op. 6444 (App. Div. 1st Dep’t 2013).