♦ ♦ ♦ ♦
c. The M.V. Mavi Marmara Incident
To add a bit more fuel to debate, I moved on to the ICC preliminary inquiry into the Israeli raid on the Gaza bound flotilla—the M.V. Mavi Marmara incident. On 31 May 2010, the Free Gaza Flotilla, carrying humanitarian aid and more than 600 pro-Palestinian activists, attempted to break Israel’s naval blockade.[1] Israeli commandos boarded (or, as some put it, assaulted) one of the vessels, the M.V. Mavi Marmara, resulting in nine deaths.[2] According to the referral filed by the Union of the Comoros, some 600 passengers were also victimized by the conduct of Israeli Defence Forces (IDF), in violation of international humanitarian law, human rights law and international criminal law.[3]
The Referral is an excellent example of how a formal request to the ICC Prosecutor for an investigation should be structured. It cogently covers the matter being referred, why and how the ICC has jurisdiction based on complementarity and gravity, the operative facts, the legal characterization, and the international crimes allegedly violated.
To set the backdrop of the discussion, I briefly went over some of the facts. The M.V. Mavi Marmara vessel was registered in Comoros.[4] Comoros does not recognize Israel, and therefore it would be “impractical for Comoros to initiate investigations and prosecutions against the perpetrators of the crimes in question.”[5] Comoros has signed and ratified the Rome Statute, whereas Israel has done neither.[6] The referral argues that the ICC has jurisdiction based on the fact that the crimes were committed within the territorial jurisdiction of Comoros, on board the M.V. Mavi Marmara vessel.[7]
According to the Referral, the Israeli courts were either unwilling or incapable of objectively investigating and prosecuting the alleged crimes committed by members of the IDF since there were past occasions when the Israeli government had not cooperated with UN fact finding missions.[8] Israeli courts were unlikely to objectively carry out their obligations because, since the birth of the State of Israel, the Israeli public has been very supportive of the IDF since it has heroically protected the homeland:
First and foremost, the highly political and sensitive nature of Israeli socio-political reality on the ground does not enable the Israeli legal system to act independently and pursue and try those responsible . . . for the commission of crimes aboard the abovelisted vessels on May 2010. Moreover, there is no political will to allow for independent and impartial investigations and prosecutions to take place. This of course emanates from the fact that (i) given the turmoil history of Israel since its creation, the IDF is highly praised as an important arm of the state for the important role it plays in the defence of the country, and (ii) it could very well be that individuals at the highest echelons of power in Israel may ultimately be found responsible for authorizing the raid and the commission of the crimes which ensued (knowingly or ought to have known). On these aspects alone, the Court cannot reasonably rely on the Israeli authorities to willingly or genuinely carry out comprehensive, independent and impartial investigations and prosecution of crimes committed as a result of the flotilla raid. The lack of cooperation on behalf of the Israeli authorities with the UN International Fact-Finding Mission is a testament to the veracity of the position that it is unlikely that the Israeli authorities will initiate or carry out proceedings at the national level independently, impartially with a genuine and bona fides intent to bring the perpetrators of the crimes committed on 31 May 2010 to justice.[9]
What struck me as significant for discussion purposes was a passage in the Referral where it appears that the scope of the investigation requested exceeds the events surrounding the Mavi Marmara incident, and actually calls for an investigation into Israel’s overall conduct and activities in Gaza.[10] It does so subtly by noting that the ICC could also have jurisdiction over this matter:
[I]f it decides to accept the declaration made by the Palestinian Authority under Article 12(3) of the Rome Statute in January 2009. This submission is based on the fact that the attack on the flotilla has serious consequences for, and effect, on the situation in Gaza. In essence, the Flotilla is directly linked to then Gaza situation. These consequences resulted in the commission of Crimes Against Humanity and War Crimes.[11]
I noted that the ICC Prosecutor had already decided on the whether the Government of Palestine could be recognized as a State, for the purposes of Article 12 of the Rome Statute. In a decision titled Situation in Palestine, dated 3 April 2013, the ICC Prosecutor opined that the Rome Statute confers no authority on the ICC Prosecutor “to define the term ‘State’ under article 12(3) which would be in variance with that established for the purpose of article 12(1),” and that even though Palestine had been recognized by more than 130 governments, including UN organizations, it had only been granted observer status by the UN General Assembly.[12] Surely this would have been known by the highly qualified law firm hired by Comoros to file the Referral on its behalf. And surely this could be viewed by some as a backdoor effort to broaden the scope of the investigation, thus politicizing the matter to deal with the overall humanitarian situation in Gaza as a result of the Israel’s overall conduct and activities related to Gaza.
It remains to be seen what the ICC Prosecutor does. Nonetheless, this example shows how some parties to the Rome Statute may be using the referral procedures as a pretext for pursuing political agenda. But there was another interesting twist worth teasing out of this example: the two UN reports associated with the Mavi Marmara incident.
On 27 September 2010, the UN Human Rights Council issued a report which had been prepared by a fact-finding mission (the Mission) it had established in Resolution 14/1 of 2 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” resulting in nine people being killed and many others injured.[13] The Mission concluded that violations of international humanitarian and human rights law had been committed by the IDF when it intercepted the flotilla and during the subsequent detention of the passengers by Israel before they were deported.[14] When reading the report, however, it appears that these fact-finders appointed by the President of the Human Rights Council went well beyond their mandate. In other words, they used the opportunity to address more than the narrow issue of what had occurred on the M.V. Mavi Marmara and the ensuing events.[15]
Under their mandate, the members of the Mission indicated to the Council that they would “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.”[16] Nowhere in the mandate was there authority to conduct, or even mention of, an investigation into the wider human rights and humanitarian situation in Gaza.
In assessing the legality of the blockade, the Mission found that the blockade was illegal:
[I]t is clear that there was no reasonable suspicion that the Flotilla posed any military risk of itself. As a result, no case could be made for intercepting the vessels in the exercise of belligerent rights or Article 51 self-defence. Thus, no case can be made for the legality of the interception and the Mission therefore finds that the interception was illegal.[17]
Further, the Mission came to the conclusion that a humanitarian crisis existed in Gaza, and the actions of the IDF in intercepting the M.V. Mavi Marmara—the excessive use of force, detention conditions, and killings—were clearly unlawful.[18] Going beyond the mandate, the Mission then addressed the wider conditions in Palestine, including the general humanitarian and human rights implications stemming from the 2007 blockade on the Gaza strip,[19] finding that that the blockade was part of a wider “overall closure” regime, which inflicted disproportionate damage to civilians:
The Mission finds that the policy of blockade or closure regime, including the naval blockade imposed by Israel on Gaza was inflicting disproportionate civilian damage. The Mission considers that the naval blockade was implemented in support of the overall closure regime. As such it was part of a single disproportionate measure of armed conflict and as such cannot itself be found proportionate.[20]
The Mission is not alone in finding that a deplorable situation exists in Gaza. It has been characterized as ‘unsustainable’. This is totally intolerable and unacceptable in the twenty-first century. It is amazing that anyone could characterize the condition of the people there as satisfying the most basic standards. The parties and the international community are urged to find the solution that will address all legitimate security concern of both Israel and the people of Palestine, both of whom are equally entitled to ‘their place under the heavens’. The apparent dichotomy in this case between the competing rights of security and to a decent living can only be resolved if old antagonisms are subordinated to a sense of justice and fair play. One has to find the strength to pluck rooted sorrows from the memory and to move on.[21]
It would appear that the report was prepared for the purpose of making a referral to the ICC Prosecutor, which would address the entire situation in Gaza spanning several years, as opposed to what occurred during the interception of the M.V. Mavi Marmara. This becomes rather obvious when considering some of the members of the Mission who authored the report: Judge Karl T. Hudson-Phillips, Q.C., retired Judge of the International Criminal Court and former Attorney General of Trinidad and Tobago, Sir Desmond de Silva, Q.C. of the United Kingdom, former Chief Prosecutor of the United Nations-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.[22] Surely a former ICC judge and a former international prosecutor would know exactly what was needed in the report in order to meet the ICC jurisdictional requirements – specific to the issue of gravity, which on its face, the events of M.V. Mavi Marmara assuredly did not meet. The Mission did not make reference to the ICC or international prosecution of those responsible for the M.V Mavic Marmara incident, though it expressed its expectations for Israel’s cooperation with a view to prosecuting those culpable.[23] Though not explicitly stated, it would appear that the this report was written with the purpose of international prosecution in mind for the overall situation in Gaza, should the Israeli government falter in investigating and prosecuting those responsible for any crimes resulting from the M.V Mavic Marmara incident. And unsurprisingly this report is eventually significantly relied on in the Referral.
And as an aside, if we were to hark back to the seminar discussion on Red Lines and Game Changers, were military strikes lawfully permitted as part of a humanitarian intervention absent UN Security Council approval, as the UK has expressed based in part on the Kosovo precedent (see link), it could be envisaged that a neighboring country or set of countries could use this report as a pretext to strike Israel as part of a humanitarian intervention, since the UN Security Council is unlikely to authorize the use of force.[24] As remote as this scenario may seem, these dangers were explored during the Red Lines and Game Changers seminar, when addressing the justification by the US, UK and others on the use of force for humanitarian purposes, as an exception to Article 2(4) of the UN Charter.
The second UN report seems measured and focused. On 2 August 2010, the Secretary General established a Panel of Inquiry on the 31 May 2010 M.V. Mavi Marmara incident. Its report was issued on September 2011.[25] The panel of experts, unlike the Human Rights Council fact-finders, concluded that the Israeli “naval blockade was 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.”[26] However, it found that Israel’s decision to board the flotilla with substantial force, and with no final warning, was excessive and unreasonable.[27] It further concluded that the loss of life and injuries resulting from the IDF’s take-over of the M.V. Mavi Marmara was unacceptable.[28] Further, the panel found significant mistreatment of passengers by Israeli authorities, including physical mistreatment, harassment, intimidation, unjustified confiscation and the denial of consular assistance.[29]
In assessing the same incident, the two UN bodies produced conflicting reports. The Secretary-General’s panel, which limited itself to the incident, found that the blockade was legal, but the forceful response of the IDF, including the subsequent treatment of passengers was unlawful. On the other hand, the Human Rights Council’s report found that the blockade itself was illegal. Going well beyond the M.V. Mavi Marmara incident, the Human Rights Council’s report attempted to tie the incident into a wider systematic assessment of human rights violations in Gaza; possibly to set up a future referral to the ICC. This inconsistency was offered as a concrete example to demonstrate why Israel has legitimate reasons, in general, for distrusting UN-commissioned reports, and more specifically why it cannot accept as a given that the ICC will be fair and impartial in its treatment of Israel’s military personnel and political leaders.
d. The Situation in Egypt
I then moved on to a couple of other vignettes that also called into question the motivation for seeking ICC intervention. The first one dealt with an application by the Muslim Brotherhood to get the ICC Prosecutor to initiate and investigation based on evidence its legal team had gathered showing that members of “military police and political members of the military regime have committed crimes against humanity.”[30]
Since the focus of the lecture was on jurisdiction, this example was interesting in that Egypt has not signed onto the Rome Statute.[31] Nonetheless, the Muslim Brotherhood claimed that the ICC would have jurisdiction in that it had been the duly elected government and that Mohammed Morsi, as the legitimate—albeit deposed—President of Egypt, had it within his authority to accept the ICC’s jurisdiction to prosecute the crimes alleged in the request for referral.[32] Of course, nothing would prevent the ICC from acting on such a request from a legitimate Head of State acting on behalf of the State, as was done with the Côte d’Ivoire.[33] But the question here is which is the legitimate government in Egypt? The Muslim Brotherhood won the elections fair and square, but there was—not to sugar coat it—a coup d’état. Also, though western liberal democracies extoll the virtues of democratic governance based on fair and inclusive elections, in the case of Egypt, since the “wrong” party won and/or was not governing as hoped by many of the electorate (and some other countries), the international community, including the UN, considers the coup leadership as the legitimate governing authority in Egypt.[34] So much so in fact, that the US has resumed its shipments of military hardware to Egypt, thus directly recognizing and propping up the unelected coup government of General Mansour.[35]
Even assuming the gravity test can be met—which is not a given—the real issue here is whether the ICC Prosecutor will find the Morsi declaration to be legally sufficient to confer ad hoc ICC jurisdiction in order to commence an investigation. This poses a real dilemma: how do you not recognize a duly elected Head of State who has been unconstitutionally removed by a military coup? What sort of message would the ICC (and UN for that matter—since the Security Council could refer the matter to the ICC Prosecutor) be sending if it were to conclude that only the unelected and unconstitutionally self-installed coup leader is the sole rightful representative of Egypt for the purpose of conferring jurisdiction to the ICC? Viewed from another perspective, is the Morsi declaration a genuine request for the ICC Prosecutor to investigate crimes against humanity of significant gravity, or is this a ploy to garner international support for the de-legitimization of the Mansour government? The ICC Prosecutor will in all likelihood examine the Morsi declaration, though I suspect the result will most like follow the Palestinian precedent: leave it up to others to determine since the Rome Statute does not explicitly authorize the ICC Prosecutor to define the narrow issue at hand.
[1] U.N. Secretary General, Report of the Secretary-General’s Panel of Inquiry on the 31 May 2010 Flotilla Incident, (September 2011), para. 93.
[2] Id., para. 1.
[3] See 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. (“Comoros Referral”), para. 25, available at http://www.icc-cpi.int/iccdocs/otp/Referral-from-Comoros.pdf.
[4] Id., para. 1.
[5] Id., para. 23.
[6] U.N. Treaty Collection, Rome Statute of the International Criminal Court, Ratifications and Signatories, (last visited 10 March 2014), https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10&chapter=18&lang=en.
[7] Comoros Referral, 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.”
[8] 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 2004, A/HRC/15/21, para. 268. “The Mission is aware that this is not the first time that the Government of Israel has declined to cooperate with an inquiry into events in which its military personnel were involved.”
[9] Comoros Referral, para. 21.
[10] See 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 2004, A/HRC/15/21, para. 275, wherein it states: “The Mission is not alone in finding that a deplorable situation exists in Gaza. It has been characterized as ‘unsustainable’. This is totally intolerable and unacceptable in the twenty-first century. It is amazing that anyone could characterize the condition of the people there as satisfying the most basic standards. The parties and the international community are urged to find the solution that will address all legitimate security concern of both Israel and the people of Palestine, both of whom are equally entitled to ‘their place under the heavens’.”
[11] Comoros Referral, para. 20.
[12] ICC Office of the Prosecutor, Statement on the Situation in Palestine, (3 April 2012), paras. 6, 7, available at http://www.icc-cpi.int/NR/rdonlyres/C6162BBF-FEB9-4FAF-AFA9-836106D2694A/284387/SituationinPalestine030412ENG.pdf.
[13] 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 2004, A/HRC/15/21, para 1.
[14] Id. at 1 (summary).
[15] Id., para. 263. For example, this paragraph makes references to “the firing of rockets and other munitions
of war into Israeli territory from Gaza. . . .”
[16] Id., Annex I, para. 5.
[17] Id., para. 58.
[18] Id., paras. 261–62.
[19] Id., paras. 37–44.
[20] Id., para. 59.
[21] Id., para. 275.
[22] Id., para. 265.
[23] Id., para. 267, wherein it states: “The Mission sincerely hopes that there will be cooperation from the Government of Israel to assist in their identification with a view to prosecuting the culpable and bringing closure to the situation.”
[24] Michael G. Karnavas, Red Lines and Game Changers—The Legality of Unilateral or Collective Use of Force in Syria, http://www.michaelgkarnavas.net/files/BrownUSeminar_27Feb14.pdf.
[25] U.N. Secretary General, Report of the Secretary-General’s Panel of Inquiry on the 31 May 2010 Flotilla Incident, (September 2011).
[26] Id. at 4.
[27] Id.
[28] Id.
[29] Id. at 5.
[30] Kevin John Heller, Good Luck with the ICC, Muslim Brotherhood, Opinio Juris, (3 January 2014, 9:59 PM), http://opiniojuris.org/2014/01/03/good-luck-icc-muslim-brotherhood/; Middle East Monitor, Democratically elected Government of Egypt submits complaint to the International Criminal Court, Middle East Monitor, 6 January 2014, available at https://www.middleeastmonitor.com/news/europe/9077-democratically-elected-government-of-egypt-submits-complaint-to-the-international-criminal-court.
[31] U.N. Treaty Collection, Rome Statute of the International Criminal Court, Ratifications and Signatories, (last visited 10 March 2014), https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10&chapter=18&lang=en.
[32] Paul Waldie, Egypt’s Muslim Brotherhood Appeals to World Criminal Court, The Globe and Mail (6 January 2014, 9:38 AM), http://www.theglobeandmail.com/news/world/lawyers-file-claim-in-icc-against-egypts-military-backed-regime/article16204039/.
[33] See infra, part g (Kenya and Africa).
[34] Nabil Fahmny, Egyptian Minister of Foreign Affairs for the interim government represented Egypt at the 68th Session of the United Nations General Assembly despite opposition from Morsi. See U.N. G.A.O.R., 68th Sess., Speech of Nabil Fahmy (28 September 2013), http://gadebate.un.org/68/egypt; See also Ozan Varol, Guest Post: Egypt’s Non-Democratic Coup d’Etat, Opinio Juris (16 July 2013, 5:59 PM), http://opiniojuris.org/2013/07/16/guest-post-egypts-non-democratic-coup-detat/; Jose Esposito, Living in denial: US policy & Egypt’s military coup, Al Jazeera, 15 July 2013, available at http://www.aljazeera.com/indepth/opinion/2013/07/2013715105014165446.html.
[35] Jeremy M. Sharp, Egypt: Background and U.S. Relations, Congressional Research Service, 33–35 (10 January 2014); Anjali Kamat and Nicole Salazar, In US military aid to Egypt, business as usual, Al Jazeera, 11 October 2013, available at http://america.aljazeera.com/articles/2013/10/11/in-us-military-aidtoegyptbusinessasusual.html.