The ICC-OTP’s Report on Preliminary Examination Activities: Part III – Registered Vessels of Comoros, Greece, and Cambodia (the Mavi Marmara incident)

This is the third and final post in the series discussing the Office of the Prosecutor’s (OTP) Report on Preliminary Examination Activities (2016). In this series, I focus on three preliminary examinations (the situations in Afghanistan and Ukraine, and the situation on Registered Vessels of Comoros, Greece, and Cambodia, or the Mavi Marmara incident) and discussed the political considerations involved.

In the first post I briefly discussed the procedure for preliminary examinations established by the Rome Statute and the attendant modalities adopted by the OTP. Before an investigation can begin, the OTP analyzes whether the International Criminal Court (ICC) has jurisdiction over a situation, and whether the situation is admissible. The OTP examines whether a national court is already dealing with the situation, how genuine are the investigations/trial (complementarity criteria), and whether there is enough information on crimes of sufficient gravity (gravity criteria). Regardless of jurisdiction and admissibility, the OTP will finally consider whether there is a compelling reason not to take on this situation (interests of justice).

In the second post I discussed the situations in Afghanistan and Ukraine. My take is that regardless of whether the states fail to cooperate with and follow up on the OTP’s investigations, the ICC can affect some positive results by nudging (naming and shaming if necessary) certain states into prosecuting in domestic courts cases that fall within the ICC’s jurisdiction. To this end, the ICC can play a role of an investigative organ of the international community – serving fully investigated cases on a silver platter for states to prosecute.

In this final post I will discuss the Mavi Marmara incident.

The Mavi Marmara incident refers to an Israeli raid on a Gaza bound flotilla. In 2009, Israel imposed a naval blockade aiming to prevent the flow of arms and ammunition to Hamas (a Palestinian Sunni-Islamic fundamentalist organization that is the governing authority of the Gaza Strip). The blockade was controversial due to its impact on the civilian population in Gaza.1 The Palestinian-Israeli conflict generates a wide variety of views and opinions, with the most powerful divide between Palestinians and Israelis. The Report of the United Nations Fact-Finding Mission on the Gaza Conflict (September 2009), also known as the Goldstone Report, found that both the Israel Defense Forces (IDF) and the Palestinian militants were guilty of war crimes and possible crimes against humanity. See Human Rights in Palestine and Other Occupied Arab Territories, Report of the United Nations Fact-Finding Mission on the Gaza Conflict, A/HRC/12/48, 25 September 2009. The Head of the mission, Richard Goldstone, later disavowed one of the central claims of his report, stating that he no longer believes that Israel intentionally killed civilians in Gaza and that “if I had known then what I know now, the Goldstone report would have been a different document.” On 31 May 2010, the Free Gaza Flotilla (eight boats carrying humanitarian aid and over 700 passengers) attempted to break the Israeli blockade. Israeli Defence Forces (IDF) intercepted, forcibly boarded, and then seized the flotilla. This resulted in the deaths of nine Turkish passengers and one dual Turkish-American national on the Mavi Marmara, a vessel registered in the Comoros.2 ICC-OTP Report on Preliminary Examination Activities, 14 November 2016, paras. 317-319.

In 2014, after conducting a preliminary examination, the OTP decided not to open an investigation. In 2015, the Pre-Trial Chamber (PTC), upon the application of the referral state (the Comoros), requested the OTP to reconsider its decision. The PTC and the OTP disagree over the assessment of the gravity criteria.

Is the PTC’s request merited or are there any political considerations involved?  In my opinion, this incident lends an appearance of the ICC’s politicization and selectivity based on factors external to those set out by the OTP in its Policy Paper on Preliminary Examinations and Examination Activities Reports.

The Comoros referral and the OTP’s examination of the Mavi Marmara incident

The Comoros, which has signed and ratified the Rome Statute, referred this situation to the ICC. It argued that the ICC had jurisdiction because the alleged crimes were committed within the territorial jurisdiction of the Comoros, on board the Mavi Marmara vessel.3 Referral of the Union of Comoros with respect to the 31 May 2010 Raid on the Humanitarian Aid Flotilla Bound for Gaza Strip and Attached Letter from Elmadağ Law Firm to Fatou Bensouda, Prosecutor of the International Criminal Court, 14 May 2013, para. 19: “It is acknowledged that, pursuant to Article 12(2)(a) of the Rome Statute of the ICC, Comoros has territorial jurisdiction on M.V. Mavi Marmara, meaning, the crimes occurred on board the M.V. Mavi Marmara, as a result of the IDF attacks, falls within the jurisdiction of the Court.” The two other vessels were registered in Greece and Cambodia (also state parties to the Rome Statute), giving the ICC jurisdiction over the alleged crimes.4 ICC-OTP, Situation on Registered Vessels of Comoros, Greece and Cambodia, Article 53(1) Report, 6 November 2014, paras. 3, 14.

Relying on “open and other reliable sources, which the Office has subjected to a fully independent, impartial and thorough analysis…”5 Id., para. 4. the OTP found that “there is reasonable basis to believe that war crimes were committed on the board of Mavi Marmara during the interception of the flotilla….”6 Id., para. 19.

The OTP nevertheless decided not to initiate an investigation because the requirement of sufficient gravity had not been met.7 Id., paras. 3, 24.  As I previously noted, gravity is one of the criteria for admissibility under Article 17 of the Rome Statute.8 Under Article 17(1)(a)-(d) of the Rome Statute, a case is inadmissible if: “(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; (c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3; (d) The case is not of sufficient gravity to justify further action by the Court.” In assessing gravity, the OTP examines the scale, nature, manner of commission of the crimes, and their impact, in relation to potential cases that may arise from the investigation.9 ICC-OTP Policy on Preliminary Examinations, November 2013, para. 9.

As part of the preliminary examination, the OTP considered two United Nations (UN) reports investigating the Mavi Marmara incident: Report of the International Fact-Finding Mission to Investigate Violations of International Law, including International Humanitarian and Human Rights Law, resulting from the Israeli Attacks on the Flotilla of Ships Carrying Humanitarian Assistance (the Fact-Finding Mission)10 Human Rights Council, Report of the International Fact-Finding Mission to Investigate Violations of International Law, including International Humanitarian and Human Rights Law, resulting from the Israeli Attacks on the Flotilla of Ships Carrying Humanitarian Assistance, Fifteenth Sess., 27 September 2010, A/HRC/15/21. and Report of the Secretary-General’s Panel of Inquiry on the 31 May 2010 Flotilla Incident (the Panel of Inquiry).11 U.N. Secretary General, Report of the Secretary-General’s Panel of Inquiry on the 31 May 2010 Flotilla Incident, September 2011.

These reports are worth a few words.  Previously, I posted on the use of the reports, noting, as I do here, the inconsistency of their findings and questioning to what extent (geo)politics may have been an underlying issue.

 The Fact-Finding Mission

The Fact-Finding Mission was established in June 2010 “to investigate violations of international law, including international humanitarian law and human rights law, resulting from the interception by Israeli forces of the humanitarian aid flotilla of ships carrying humanitarian assistance to Gaza.”12 Human Rights Council, Report of the International Fact-Finding Mission to Investigate Violations of International Law, including International Humanitarian and Human Rights Law, resulting from the Israeli Attacks on the Flotilla of Ships Carrying Humanitarian Assistance, Fifteenth Sess., 27 September 2010, A/HRC/15/21, para. 1. Under its mandate, the Fact-Finding Mission was to “focus on the events that took place in international waters on 31 May 2010 as well as the way in which the Israeli authorities dealt with the aftermath of the operation and the repatriation of those participating in the flotilla.”13 Id., Annex 1, para. 5.

First, the Fact-Finding Mission considered the legality of the Israeli naval blockade. It found that the blockade was illegal, since the flotilla did not pose any risk that triggered the exercise of belligerent rights or self-defence by the IDF.14 Id., para. 58. 

The Fact-Finding Mission went on to analyze the situation in Gaza, including the general humanitarian and human rights implications of the blockade, finding that the blockade was part of a wider “overall closure” regime, which inflicted disproportionate damage on civilians.15 Id., para. 59. It concluded that a humanitarian crisis existed in Gaza and that the actions of the IDF – the excessive use of force, killings, and detention of passengers before they were deported – were in violation of international humanitarian and human rights law.16 Id.

 The Panel of Inquiry

The UN Secretary General established the Panel of Inquiry in August 2010.  Its task was to review interim and final reports of national investigations conducted by Turkey and Israel, request clarifications and additional information as required, examine and identify the facts, circumstances and context of the incident, and consider and recommend ways of avoiding similar incidents in the future.17 U.N. Secretary General, Report of the Secretary-General’s Panel of Inquiry on the 31 May 2010 Flotilla Incident, September 2011, at 7, 11.

The Panel of Inquiry found the blockade legal: “imposed for legitimate security measures in order to prevent weapons from entering Gaza by sea and its implementation complied with the requirements of international law.”18 Id., at 6, 81.  It also found that Israel’s decision to board the flotilla with substantial force, and with no final warning, was excessive and unreasonable.19 Id., at 4, 54.

As for the actions of the IDF, the Panel of Inquiry found them excessive, and the loss of life and injuries resulting from the interception of the Mavi Marmara unacceptable.20 Id., at 4, 54. See also para. 134. It further found that there was significant mistreatment of passengers by Israeli authorities, including “physical mistreatment, harassment and intimidation, unjustified confiscation of belongings and the denial of timely consular assistance.”21 Id., at 5; see also para. 145.

In assessing the same incident, the two reports by the UN entities came to conflicting conclusions. Going beyond its remit, the Fact-Finding Mission linked the Mavi Marmara incident with the overall human rights and humanitarian situation in Gaza spanning several years.

It bears mentioning that among the members of the Fact-Finding Mission who prepared the report were Judge Karl T. Hudson-Phillips, Q.C., retired Judge of the ICC and former Attorney General of Trinidad and Tobago, Sir Desmond de Silva, Q.C., of the United Kingdom, former Chief Prosecutor of the UN-backed Special Court for Sierra Leone, and Ms. Mary Shanthi Dairiam of Malaysia, founding member of the Board of Directors of the International Women’s Rights Action Watch Asia Pacific and former member of the Committee on the Elimination of Discrimination against Women. A former ICC judge and a former international prosecutor would obviously know what is needed to meet the ICC’s jurisdictional requirements, and, specifically, the gravity criteria.

Querying why the Fact-Finding Mission broadened the scope of its assessment and discussed the conflict in Gaza, it is not unreasonable to suggest that the underlying reason was to overcome the gravity criteria, which, on its face, assuredly was not met. This in turn (and in my opinion) raises claims of politicization, giving legitimate reasons for Israel to distrust UN-commissioned reports.

The two UN reports were provided to the OTP for its preliminary examination. On the issue of the legality of the blockade, the OTP determined, conditionally, that there was a reasonable basis to believe that the forcible boarding would have constituted unlawful attacks on civilian objects if the blockade imposed by the IDF had been unlawful.22 ICC-OTP, Situation on Registered Vessels of Comoros, Greece and Cambodia, Article 53(1) Report, 6 November 2014, para. 142. The OTP refrained, however, from determining the legality of the blockade since it did not affect the OTP’s gravity assessment of the potential cases.23 Id..

Regarding the overall context of the Gaza conflict, the OTP noted that the ICC “does not have jurisdiction over other alleged crimes committed in this context, nor in the broader context of any conflict between Israel and Palestine.”24 Id., para. 26. The OTP distinguished the situation with regard to the civilian population in Gaza from the issue before the OTP: evaluating the gravity of the crimes allegedly committed by the IDF on board the three vessels over which the ICC has jurisdiction during the interception of the flotilla.25 Id.

The OTP found that these cases are “inherently limited to an event encompassing a small number of victims of the alleged ICC crimes, with limited countervailing qualitative considerations.”26 Id., para. 25. It then concluded that potential cases that would likely arise from this situation would not be of sufficient gravity to justify further action and investigation.

On 29 January 2015, the Comoros applied to the PTC to request the OTP to reconsider its decision. The two main grounds for the review were:

1) The OTP’s failure to take into accounts facts that did not occur on the three vessels but over which the ICC has jurisdiction;

2) The OTP’s failure to properly address the factors relevant to the determination of gravity.27 Situation on Registered Vessels of The Union of The Comoros, The Hellenic Republic of Greece and The Kingdom of Cambodia, ICC-01/13-3-Red, Application 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 (Public Redacted version), 29 January 2015, para. 11.

The Comoros argued that when assessing the gravity of the alleged crimes, the OTP should have considered events which occurred in the broader context of the conflict between Israel and Hamas.28 Id., paras. 62-81. The Comoros also argued that the OTP should have considered perpetrators at the highest level of command: the IDF commanders and Israeli political leaders.29 Id., paras. 85-88.

Relying on the two UN reports, the Comoros argued that the majority of the 700 passengers complained of treatment amounting to torture and cruel and inhumane treatment.30 Id., para. 90. The Comoros also argued that the OTP should consider the attainment by the ICC of broader jurisdiction over Gaza;31 Id., paras. 30-32. Palestine had acceded to the Rome Statute, declaring its acceptance of the ICC’s jurisdiction over matters “in the occupied Palestinian territory, including East Jerusalem, since 13 June 2014.”32 The situation in Palestine has been under OTP’s preliminary examination since 16 January 2015. The OTP received over 86 communications pursuant to Article 15. See ICC-OTP Report on Preliminary Examination Activities, 14 November 2016, paras. 109-110. Most recently, on 22 November 2016, a group of Palestinian human rights organizations submitted a 145-page communication with additional information on the crimes committed in the situation in Palestine. See Palestinian Human Rights Organizations and Victims’ Communication to the International Criminal Court Pursuant to Article 15 of the Rome Statute requesting Investigation and Prosecution of the Illegal Closure of the Gaza Strip: Persecution and Other Inhumane Acts Perpetrated against the Civilian Population as Crimes against Humanity, November 2016, by Al-Haq, Al-Mezan Center for Human Rights, Palestinian Centre for Human Rights, Aldameer Association for Human Rights, available here.

In responding to the Comoros request, the OTP argued that the Comoros “confuse[d] the situation aboard the Three Vessels and the situation in Gaza.”33 Situation on Registered Vessels of The Union of The Comoros, The Hellenic Republic of Greece and The Kingdom of Cambodia, ICC-01/13-14-Red, Public Redacted Version of Prosecution Response to the Application for Review of its Determination under article 53(1)(b) of the Rome Statute, 30 March 2015, para. 11. According to the OTP, it was not required to look outside the ICC’s territorial jurisdiction. The OTP also argued that even if this approach was wrong, “the available facts show that the apparent war crimes were neither sufficiently proximate to, nor aggravated by, the events in Gaza so as to materially affect the outcome of the [OTP’s] view.”34 Id., para. 55.

The OTP also argued that the identified crimes on board the Mavi Marmara “did not appear to form a part of the intentional attacks upon the flotilla, but rather appeared to be incidental to them.”35 Id., para. 56. Further, the identified crimes were not “systematic or resulted from a deliberate plan or policy.”36 Id., para. 60. “[T]he potential perpetrators…were among those who carried out the boarding of the Mavi Marmara,…but not necessarily other persons further up in the chain of command.”37 Id.

Finally, the OTP argued that it did not determine insufficient gravity based on the number of victims, but on the basis of the “‘limited number of victims’ considered with the ‘limited countervailing qualitative considerations.’”38 Id., para. 67. It compared the incident with the Haskanita attack related to the situation in Darfur (the killing of 12 African Union Mission in Sudan (AMIS) peacekeepers and the attempt to kill a further eight), stating that in the Haskanita attack the indirect victims of the attack (the local population) were extensive due to severe disruption of the AMIS operations. In contrast, according to the OTP, in the Mavi Marmara incident, although the number of victims aboard the vessel was greater, the number of indirect victims was fewer.39 Id., para. 71.

In granting the Comoros’ request, the PTC, by majority, found persuasive the argument of the Comoros that the OTP failed to consider “whether the persons likely to be the object of the investigation into the situation would include those who bear the greatest responsibility….”40 Situation on Registered Vessels of The Union of The Comoros, The Hellenic Republic of Greece and The Kingdom of Cambodia, ICC-01/13-34 16-07-2015 14/27 EC PT, Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation, 16 July 2015, para. 23.  The PTC also found that the factor of the scale of the crimes “should have been taken into account … as militating in favour of sufficient gravity, rather than the opposite.”41 Id., para. 26. The PTC noted that the Comoros and the OTP essentially agree on the number of victims. The PTC explained that the scale of the crimes – ten killings, 50-55 injuries, and possibly hundreds of instances of outrages upon personal dignity, torture, or inhuman treatment – are a compelling indicator of sufficient gravity.42 Id. The PTC compared the gravity of the Mavi Marmara incident to the Haskanita attack as an example of a case with fewer numbers of victims that the OTP not only investigated, but prosecuted.43 Id. See also Kevin Jon Heller’s post discussing the PTC’s decision, pointing out that the PTC compared the gravity of a situation (Mavi Marmara) with the gravity of one single case within a situation (Haskanita attack within the situation in Darfur). He explains that although the number of victims in two instances is comparable, when one compares the number of victims in two situations as a whole, the comparison is then between 10 civilian deaths and hundreds of thousands. Opinio Juris, The Pre-Trial Chamber’s Dangerous Comoros Review Decision, Kevin Jon Heller, 17 July 2015.

The PTC found that the OTP made the following factual errors:

1) It incorrectly assessed the information that live fire was used by the IDF prior to the boarding of the Mavi Marmara;

2) It failed to consider that the detained passengers suffered cruel and abusive treatment in Israel, which suggests that the alleged crimes may not have occurred as individual excesses of the IDF soldiers; and

3) It failed to recognize that the facts that the unnecessarily cruel treatment of passengers, the attempts to conceal the crimes, and the fact that the events did not unfold on other vessels in the flotilla in the same way as on the Mavi Marmara, are not incompatible with the hypothesis that the identified crimes were planned.44 Situation on Registered Vessels of The Union of The Comoros, The Hellenic Republic of Greece and The Kingdom of Cambodia, ICC-01/13-34 16-07-2015 14/27 EC PT, Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation, 16 July 2015, para. 44.

The PTC concluded that the OTP “should have recognised the possibility that the events at issue had an impact going beyond the suffering of the direct and indirect victims.”45 Id., para. 48. “[T]he commission of the identified crimes on the Mavi Marmara, which were highly publicised, would have sent a clear and strong message to the people in Gaza (and beyond) that the blockade of Gaza was in full force and that even the delivery of humanitarian aid would be controlled and supervised by the Israeli authorities.”46 Id.

Regarding the argument that the OTP should reconsider the situation in light of the ICC’s broader jurisdiction over Gaza, the PTC decided not to entertain this argument since it was not presented as a ground for review.47 Id., para. 3.

Judge Péter Kovács issued a partly dissenting opinion. In his view, the OTP’s findings on gravity were not necessarily unreasonable and did not require reconsideration.48 Situation on Registered Vessels of The Union of The Comoros, The Hellenic Republic of Greece and The Kingdom of Cambodia, ICC-01/13-34-Annx-Corr, Partially Dissenting Opinion of Judge Péter Kovács, 16 July 2015, para. 14. He did not “believe that the death of ten persons and the injury of 55 others in the context described in the Prosecutor’s report and the Comoros submission is sufficiently grave to warrant the opening of an investigation.”49 Id., para. 19 (italics in original). This was so “despite the Majority’s attempt to break down the Prosecutor’s analysis of the various components underlying gravity (scale, nature, manner, and impact).50 Id.

Judge Kovács agreed with the OTP that although from a broader perspective, the overall blockade and restrictions imposed by Israel had impacted the Gaza population, the assessment of gravity “must indeed be distinguished from the overall humanitarian crisis suffered by the Palestinian civilian population which in fact resulted from the entirety of the ongoing Palestinian-Israeli conflict.”51 Id., para. 21 (italics in original).

Judge Kovács agreed that the OTP erred in failing to consider whether potential suspects would include those who bear the greatest responsibility, but disagreed that this error affected the gravity determination.52 Id., para. 27.

Comparing the OTP’s assessment of gravity to other situations, Judge Kovács concluded that in the context of the Mavi Marmara “the gravity threshold was far from being met.”53 Id., para. 23.

The OTP appealed, arguing that the PTC’s decision “not only purports to rule on the admissibility of any potential case(s) arising from this situation, but interprets the law in a manner that alters the Prosecution’s mandate under the Statute and dramatically expands the scope of the Court’s operations.”54 Situation on Registered Vessels of The Union of The Comoros, The Hellenic Republic of Greece and The Kingdom of Cambodia, ICC-01/13, 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), 27 July 2015, para. 4. In other words, by directing the OTP to open the investigation, the PTC had overstepped its supervisory role and undermined the OTP’s discretion. As the OTP put it, the PTC’s decision was of “near-constitutional importance.”55 Id., para. 5.

The Appeals Chamber considered the appeal inadmissible and dismissed it without discussing the merits, reasoning that the OTP’s request to review PTC decisions with respect to admissibility lacked a statutory basis. The Appeals Chamber was of the view that to consider the appeal would “rupture the scheme for judicial review of decisions of the Prosecutor as explicitly set out in article 55.”56 Situation on Registered Vessels of The Union of The Comoros, The Hellenic Republic of Greece and The Kingdom of Cambodia, ICC-01/13 OA, 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, 6 November 2015, para. 66.

On 14 November 2016, the OTP issued its Report on Preliminary Examination Activities. According to this report, the OTP conducted a de novo review of all the information available prior to the decision not to investigate, as well as the additional materials provided by the Comoros.57 ICC-OTP Report on Preliminary Examination Activities, 14 November 2016, para. 328. The OTP took into account the PTC’s reasoning, the arguments of the Comoros, and the arguments by the participating victims.58 Id., para. 329. The OTP’s final decision is expected “in the near future.”59 Id., para. 331.

 Observations

It remains to be seen whether, upon reconsideration, the OTP will decide to open an investigation or whether it will reach the same conclusions as it did in November 2014.  The latter now seems unlikely and here is potentially why.

The OTP has already concluded that crimes within the jurisdiction of the ICC have occurred. But for the lack of gravity, the situation would have met all of the admissibility criteria. Even if the OTP again decides not to open an investigation based on the interest of justice (Article 53(1)(c) of the Rome Statute), the PTC has: a. the right to review that decision on its own, and, more importantly, b. the authority to refuse to confirm the OTP’s decision under article 53(3)(b):

In addition, the Pre-Trial Chamber may, on its own initiative, review a decision of the Prosecutor not to proceed if it is based solely on paragraph 1 (c) or 2 (c) [interests of justice]. In such a case, the decision of the Prosecutor shall be effective only if confirmed by the Pre-Trial Chamber.

In other words, the OTP’s decision not to initiate an investigation ultimately depends on the PTC’s decision. Practically, this means that the PTC can order the OTP to open an investigation. In reading the proverbial tea leaves, it appears that the PTC has already concluded that a full-blown investigation into the Mavi Marmara incident, inclusive of which are the incidents related to Gaza, should occur. Put differently, the request by the PTC is effectively a charade – even though it is mandated under the Rome Statute – because irrespective of the OTP’s ultimate decision on the request for review, the PTC has already effectively determined that the OTP should proceed with an investigation.

Chantal Meloni, Associate Professor of Criminal law at the University of Milan, in her article The ICC preliminary examination of the Flotilla situation: An opportunity to contextualize gravity (QIL, Zoom-in 33 2016, 3-20), conducts an insightful analysis of the OTP’s discretion in selecting the investigations and cases to pursue, and the tension between such discretion and judicial review. While I tend to agree with her analysis of prosecutorial discretion at the ICC, I find wanting her conclusion that the Gaza conflict should be part and parcel of assessing the gravity of the Mavi Marmara incident.

Meloni notes that the issue of prosecutorial discretion in selecting cases for investigation “is one of the most debated issues in recent international criminal law commentaries.”60 Chantal Meloni, The ICC Preliminary Examination of the Flotilla situation: An opportunity to contextualize gravity, 33 QIL Zoom-in (2016), at 3.  Meloni observes that the preparatory works and negotiating history of the Rome Statute show debates over limiting prosecutorial discretion when it comes to a decision to open an investigation. The opposite scenario (decision not to investigate) did not receive as much attention.61 Id., at 6. She raises a valid question as to what extent the OTP can be pushed to pursue an investigation into a situation or a specific case.62 Id.

Analyzing the admissibility procedures at the pre-trial stage, she correctly observes that the tension between the OTP’s autonomy and Judges’ oversight is embedded in the Rome Statute’s provisions.

Meloni rightly observes that under Article 53 of the Rome Statute, there are different mechanisms for review depending on whether the situation is referred by a state party or whether the OTP starts a preliminary examination on its own. In case of preliminary examinations started by the OTP, the PTC has the authority to review a negative decision only if this decision was made in the interests of justice (Article 53(3)(b) of the Rome Statute). If the situation is referred by a state, a negative decision in the interests of justice can also be reviewed by the PTC on its own. However, in addition, the referring state can request the PTC to review the OTP’s negative decision based on any of the assessment criteria (Article 53(3)(a) of the Rome Statute). Thus, the OTP’s decision not to investigate a situation referred by a state party is always subject to potential review by the PTC.

Meloni takes the view that based on the PTC’s interpretation of Article 53 in the PTC’s decision (its decision granting the Comoros’ request for reconsideration), the OTP’s discretion is much more limited. She suggests, debatably in my opinion, that the PTC adopted a “positivist” approach “requesting the application of ‘exacting legal requirements’ by the Prosecutor in the determination of the commencement of an investigation.”63 Id., at 10. This means that if the OTP has information that allows a reasonable inference that at least one crime within the jurisdiction of the ICC has been committed and that the case would be admissible, the OTP is obligated to open an investigation, “as only by investigating could doubts be overcome.”64 Id., citing Situation on Registered Vessels of The Union of The Comoros, The Hellenic Republic of Greece and The Kingdom of Cambodia, ICC-01/13-34 16-07-2015 14/27 EC PT, Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation, 16 July 2015, para. 13.

Meloni then moves on to analyze the PTC’s decision and agrees with the arguments presented by the Comoros.  In her view, the Mavi Marmara incident is relevant and important for the ICC because of the broader context which created the incident – the blockade of the Gaza Strip and its consequences on the Palestinian population of Gaza.65 Id., at 17. She recognizes that at the time of the referral, the situation had a limited scope and the ICC did not have jurisdiction over the alleged crimes committed in the context of the Palestinian-Israeli conflict.66 Id.  She then argues that since Palestine has acceded to the Rome Statute and declared its acceptance of the ICC’s jurisdiction, any arguments related to the ICC’s jurisdictional landscape are no longer valid.

Meloni concludes:

[T]he broader context of the Gaza situation – and in particular the ongoing (illegal) blockade imposed on the Gaza Strip – shall be taken into consideration by the OTP, not only for its inextricably[sic] link with the contextual element of the alleged was crimes committed during the Flotilla raid…, but also in terms of impact of the alleged crimes on the Palestinian population of Gaza, which is relevant for the overall assessment of the gravity threshold.67 Id., at 20.

I disagree.68 For a different point of view and an interesting analysis of the ICC’s case law on gravity, see Marco Longobardo, Factors relevant for the assessment of sufficient gravity in the ICC. Proceedings and the elements of international crimes, 33 QIL Zoom-in 2016, 21-41, suggesting that both OTP and the PTC may have been incorrect in assessing the gravity of the Mavi Marmara incident, and that only objective factors that are external or additional to the element of the crimes may be relevant in the gravity assessment (such as the method of execution). See also Marco Longobardo, Everything is Relative, Even Gravity, 14 JICJ 2016, 1011-1030. The Mavi Marmara incident is limited to discreet events that occurred on the open seas.  Irrespective of whether the blockade was illegal (a matter not to be discussed in this post), the gravity criteria should be based on what happened during the interception of the flotilla, without linking it to the overall context of the situation in Gaza. Linking the two unrelated situations gives more than an appearance that the Mavi Marmara incident was used by the Comoros (and in my opinion the PTC) as a pretext to get the situation in Gaza before the ICC.

Whether the ICC should look into the situation in Gaza is a separate matter. My take is that the arguments linking the Mavi Marmara incident with the Gaza conflict are made only for putting a thumb on the gravity scale and, consequently, backdooring the situation in Gaza through the Mavi Marmara incident. Creative, but legally spurious. The underlying reason for elevating the gravity of the Mavi Marmara incident is to investigate the alleged crimes committed during Palestinian-Israeli conflict.  Pressurizing the OTP to link and merge the two distinct situations lends an appearance of (geo)political strategy at play: legitimizing Palestine as a state – a matter that is not within the ICC’s remit.

The PTC has already indicated that crimes occurred, which may, though not necessarily, be sufficient for the responsible state (Israel) to bring the perpetrators to trial. The fact that Israel may have a different view regarding the Mavi Marmara incident (and thus having concluded not to pursue prosecutions) is not cause to find creative ways to get around the lack of gravity determined by the OTP in declining to further investigate (charge and prosecute) the alleged perpetrators.

While this may be an unsatisfactory outcome for some, especially within the humanitarian community, it is not a legitimate justification for circumventing the criteria set up by the Rome Statute. The OTP is obliged to assess the gravity of the crimes without regard for the international community’s perception of these crimes, the situation in Gaza, or for other ancillary reasons – however (geo)politically suitable.

The ICC is constantly criticized for its politicization, selectivity, and subjectivity. Depending on how the OTP (and ultimately the PTC) pursues the Mavi Marmara incident, the ICC risks giving further fodder to its critics in advancing these sorts of claims, thus further eroding the image and integrity of the ICC.

 

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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