The usual suspects of the blogosphere have already put up excellent posts on this development: Kevin Heller (here and here), Dapo Akande (here) and William Schabas (here). They already covered a number of more political issues which I won’t delve into here, such the perception issues that would flow from the initiation or not of a formal investigation among African States and the international community, the alleged anti-palestinian bias of the ICC OTP or the apparently poor timing of the referral given that Israel and Turkey seem to be getting close to finishing their negotiations on the incident.
I also won’t go discussions of certain legal questions that come up in relation to this referral. I would tend to agree with Kevin’s evaluation that this would not meet the gravity threshold under Article 17, especially given the response given by the Prosecutor in the Iraq communications. However, I’m wondering if the Abu Garda case, which concerned a single attack on a peace keeping compound, and where it was considered that the gravity threshold was met, is not a indication to the contrary.
Also, I find the referral thoroughly sloppy on the legal characterization of the facts as war crimes and crimes against humanity. It unconvincingly tries to link the events to the Gaza situation (discussions on the Palestinian declaration to the ICC in 2009 are for me beside the point here) and there is a meager two paragraphs on crimes against humanity that would be laughable if not present in a formal State referral to the ICC.
Finally, as an aside, I think too much is being made of the link between the fact that Comoros is the State of registration of the Mavi Marmama and the fact that Comoros is doing the referral, as if the former implied the latter. However, legally, there is no need to make that link. What’s important is that the alleged crimes were committed on the territory of a State Party, but after that, any State Party could have made the referral.
But the main point I want to focus on is whether this is really a referral of a “situation” as required by the ICC Statute. Both Dapo and Kevin make strong cases on the fact that this is indeed a “situation”, because specific cases have not been referred (which would not be allowed) and because it is not an issue that potentially only one crime has been committed (I’m not entirely sure why both of them make this last point so vocally, as even the referral suggests, even unconvincingly a number of alleged crimes falling within the jurisdiction of the Court…). I’m still not convinced for the following reasons.
To start out, it is interesting to note that, reading the referral, the scope of the “situation” that is referred is subject to interpretation. The Mavi Marmara is mentioned a number of times in the document, but the actual referral seems to be broader and cover “IDF’s attach on the humanitarian aid flotilla on the 31st of May 2010”. This ambiguity is reflected in the OTP Press release with only mentions the Mavi Marmara in the title of the release, while using the broader scope in the text of the release.
I think both interpretations raise different questions that I’m struggling with.
If the situation referred is the attack on the Mavi Marmara, I can’t shrug the feeling that this is stretching the notion of “situation” a little too far. Of course, a “situation” needn’t be the whole territory of a State (as illustrated by the Uganda and Sudan referrals). However, I’m wondering if narrowing down a referral to a single event doesn’t make a joke out of the whole idea of what a “situation” is (as well as of prosecutorial discretion in the selection of cases). Would we really call, for example, the “referral” of the destruction of the bridge of Mostar or the Sarajevo snipping, “situations”? Or to take an ICC example, what would we have said if only the attack on the AU peacekeepers, for which Abu Garda was charged, had been referred by the Security Council?
Moreover, the thin line between “situation” and “case” becomes a little blurred if this referral is accepted. Indeed, at the ICC, a case is when, within a situation, a specific individual becomes the focus of investigations for specific crimes. For me, allowing only one incident to be referred under the label “situation”, would be like saying in a national context that investigation into a murder is a “situation”… until a suspect is identified and it becomes a “case”. This would be a ridiculous semantic distinction. In other words, I think that we are here very close to a “case” being referred to the ICC. This feeling is obviously strenghtened by the fact that the perpetrators are already know and pointed to in the referral, at least collectively, as the IDF.
Let me be clear, I’m not saying that this referral does not fit the ICC definition as it currently stands and as put forward by Dapo and Kevin (given that it is extremely vague both in the Statute and the case law…), but should this be considered as a “situation”, thus allowing the ICC to take on specific incidents, rather than broader “situations” (for lack of a better word…), I think this could change the logic of ICC intervention in ways that would not be necessarily welcome.
If, on the other hand, the “situation” is the attack on all the boats, notably the two other ships flying flags of State Parties (Greece and Cambodia), then a different question arises. The issue can become whether the referral is too broad rather than too narrow. Indeed, the referral covers crimes committed not on the territory of one State Party, but on the territory of several State Parties. Again, nothing in the Statute seems to prevent that, but I’m wondering if this is really what the drafters intended, because it could lead to the consequence of actually de-territorializing.
Indeed, what the Comoros are essentially saying, is that the key element is the attack and its perpretrators, irrespective of the territory it was committed on (aside from the jurisdictional requirements of course). This means that tomorrow, a State could refer the crimes committed by a global terrorist organization, anywhere on the territory of a State Party. Would that fit our instinctive notion of a “situation”? If it doesn’t, we must be cautious at accepting a referral which does the same here: the attack of the IDF on the flotilla, irrespective of the territory it was committed on. I know it seems difficult to compare the two situations, because we are just talking about boats here, not entire countries, but legally, it’s the same difference.
All in all, I think that the fact that this is a “situation” under the Rome Statute is not as clear-cut as we would like to think. And if it turns out to be, I think it sets a precedent that can have far-reaching consequences that we should be aware of and that might affect the way the ICC operates in ways that go further than the specific political context in which this referral comes.
Spreading the Jam 