As I briefly mentioned last week, the Office of the Prosecutor at the ICC has declined to open an investigation into the incidents that surrounded Israel’s dealing with the flotilla of boats that attempted to break the blockade of Gaza in 2010. The general context has been largely documented, both in the press and in reports issued since the incidents. In fact, few single incidents have led to the production of so many reports, both domestic and international, in recent times.
The OTP’s analysis relies heavily on these reports to come to its conclusion that, while there may be some reasons to believe that war crimes have been committed, the situation is not of sufficient gravity to warrant the opening of an investigation. As noted by Kevin Jon Heller, the Comoros, who referred the situation in the first place, can “appeal” the decision, but the best that it could obtain is that a Chamber simply asks the OTP to reconsider its decision, without any power to force it to actually open an investigation.
There is a lot to say about the document produced by the OTP, I just wanted to comment on two points: gravity and the nature of the armed conflict (for very interesting early reflections on the OTP’s reasoning, see Michael Kearney’s points over at Opinio Juris).
In relation to gravity, I’ve never been convinced by evaluations of gravity done at the ICC, whether by judges or by the Prosecution. Within the gravest crimes that are within the jurisdiction of the Court, trying to identify less grave specific crimes will always be a delicate exercise and every time a pre-trial chamber has attempted to do so, the Appeals Chamber shot it down. Independently from that, the OTP has come up with its own criteria on the issue, which it attempts to apply here. But ultimately, this is all very subjective. As pointed out by the Centre for Constitutional Rights, how is the attack of a vessel in the high seas by the army of a State not a symbolically very grave situation? Indeed, as pointed out by Michael Kearney, the protection of the high seas led to the creation of the first universal jurisdiction crime, that of piracy… Gravity assesments are therefore always inevitably going to lead to probably casuisitic discussions of what is gravest and I’m not sure it was a good idea to include it in the Statute. We should just accept that the Prosecutor of the ICC, like any prosecutor in the world, to a more or less large extent, has discretion in decisions to prosecute, without hiding behind a “gravity” requirement.
Finally, one point I mentioned in my previous post, is that I do not understand why the OTP goes into a discussion of the Abu Garda case (where a handful of peacekeepers were killed), to contrast it with the flotilla incident. Abu Garda was one case within a broader situation, whereas the Comoros referral is of a whole situation. Surely, the gravity assessment need not be the same in both circumstances. This confusion actually goes some way into confirming the fears I expressed some time ago on the risks of accepting the referral of such a narrowly defined situation…
2) The armed conflict
In relation to the relevant armed conflict to be considered, I’ve been asking myself a question since day one, to which I still have not received an answer: why is the Israeli-Palestinian conflict legally relevant to the assesment of the events that occurred?
At this point, I can already hear the jaws of most readers hit the ground in disbelief at this obviously stupid question. Indeed, as far as I can tell, everyone seems to assume the link between the gaza flotilla incidents and the actual ongoing situation in Palestine: every report mentioned, every commentary issued, every article published (see recently in the Criminal Law Forum).
However, while politically, everything is obviously linked, I’m not sure this is the case legally. If we look at things calmly, we have one State (Israel) attacking the territory of a number of other States (the flag countries of the vessels) on the high seas. In fact, it is this territorial aspect that allows the Court to have jurisdiction in the first place under Article 12. How is the armed conflict (if any) not naturally between Israel and those States?
Of course, the flotilla’s aim was to break the blockade. But this is a political aim and it does not necessarily make it legally relevant. If not, the relevance of the Israel-Palestine conflict as a contextual element would entirely depend on the subjective claims of the people on the boat, which is surely a little vague. Moreover, by that standard, if Israel were to board a ship just leaving the territorial waters of France of Argentina (thousands of kilometers away), heading to Gaza with the claimed objective of breaking the blockade, would the reasoning still work? I doubt it. In light of this, the single paragraph proposed by the OTP on the nexus to the armed conflict (§128) is not entirely satisfactory.
Of course, I am probably missing something obvious here. Too many intelligent and competent people in too many institutions have reached this conclusion for there to be a problem. As the famous breakup line goes: it’s not you, it’s me! So I look forward to readers out there to enlighten me…