ICC Judges ask the Prosecutor to reconsider decision not to investigate Israeli Gaza Flotilla conduct

Readers of this blog will recall that in 2013 the Comoros referred to the Prosecutor of the International Criminal Court the situation regarding what happened in 2010, when Israeli forces boarded several ships (the so called “freedom flotilla“) that were trying to “break” the blockade on Gaza. The operation took place on the high seas and led to a number of deaths and alleged human rights abuses.

In November 2014, the Prosecutor declined to open an investigation on the basis on a gravity assessment under Articles 53 and 17 of the Rome Statute.

Last week, Pre-Trial Chamber I of the ICC added a new twist to the story and requested that the Prosecutor reconsider her decision not to open an investigation in the situation.

This is the first time that such a decision is rendered and it therefore gives some insight into how such a review should be conducted.

I am actually of two minds about the decision. Indeed, while I find the minutiae of the decision sloppy and unconvincing (1) I found reasons, despite myself, to legally defend it (2).

  1. The sloppy details of the decision

Kevin Jon Heller, over at Opinio Juris, has produced a first commentary of the reasoning of the judges and I will not rehash his points here, as I agree with all of them. I’ll just add a few points of my own on a couple of issues.

First of all, Kevin notes that the PTC’s definition of “persons most responsible” is “bizarre”. The OTP had said that the investigation would likely not touch upon high ranking officials, to which the PTC responded:

the conclusion in the Decision Not to Investigate that there was not a reasonable basis to believe that “senior IDF commanders and Israeli leaders” were responsible as perpetrators or planners of the identified crimes does not answer the question at issue, which relates to the Prosecutor’s ability to investigate and prosecute those being the most responsible for the crimes under consideration and not as such to the seniority or hierarchical position of those who may be responsible for such crimes.

 For Kevin, this means that:

Imagine two situations based on the scenario above. In Situation 1, the low-level soldiers acted alone. In Situation 2, the low-level soldiers executed the civilians because their superiors ordered them to. According to the PTC, there is no gravity difference between an OTP investigation focusing on the low-level soldiers in Situation 1 and an OTP investigation focusing on the superiors in Situation 2, because in each situation the OTP would be investigating the individuals “most responsible” for executing the civilians. That defies common sense.

 Actually, I think that Kevin is reading more sense into the decision that there actually is on that point. Indeed, let’s take a step back and wonder simply what does the expression “Prosecutor’s ability to investigate and prosecute those being the most responsible for the crimes under consideration” actually mean? I would imagine that going after those “most responsible for the crimes under consideration” is what the prosecutor’s job is, right, for any crime? How is that an actual gravity criteria? It’s just common sense. Or should we focus on the word “ability”? in that case, as Israel is unlikely to hand over anyone to the ICC, then the Prosecutor certainly has no “ability” to prosecute anyone in relation to the flotilla. Ultimately, this might be a reason to investigate (or not) in the abstract, but I don’t see how this has anything to do with any meaningful definition of gravity… So, following up on Kevin’s point, it’s not that the PTC’s approach our common sense idea of gravity, it’s that it has absolutely nothing to do with gravity in the first place…

As an aside, it should be noted that the PTC’s interpretation of “persons most responsible” is actually at odds with the case law of other chambers, more particularly that of Pre Trial Chamber II in the Kenya situation and despite it actually being quoted as a source for this criteria. Indeed, in the decision to open an investigation in the situation in Kenya, PTC II found that, specifically when discussing gravity:

“With respect to the first element concerning the groups of persons likely to be the focus of the Prosecutor’s future investigations, the supporting material refers to their high-ranking positions, and their alleged role in the violence, namely inciting, planning, financing, colluding with criminal gangs, and otherwise contributing to the organization of the violence. This renders the first constituent element of gravity satisfied.”

This is not the first time that there would be discrepancies in the case law, or even that chambers would refer to other chambers to make them say something else than they actually said. More surprising here is that Judge Cuno Tarfusser was sitting on both decisions! Either he had a change of heart on this (and some explanation might have been welcome), or his former position slipped his mind, which is somewhat troublesome…

Kevin also notes that the PTC confuses situational and case gravity. Which is true. As I noted back in November, it is the Prosecutor herself who opened that door by comparing the situation to the Abu Garda case. So we have the Prosecutor and the PTC both misunderstanding the difference between situational and case gravity… and coming up with different conclusions!

In a follow up post, Kevin focuses on the troublesome concluding paragraph of the decision:

“As a final note, the Chamber cannot overlook the discrepancy between, on the one hand, the Prosecutor’s conclusion that the identified crimes were so evidently not grave enough to justify action by the Court, of which the raison d’être is to investigate and prosecute international crimes of concern to the international community, and, on the other hand, the attention and concern that these events attracted from the parties involved, also leading to several fact-finding efforts on behalf of States and the United Nations in order to shed light on the events”.

Not only, on a general level, and as pointed out by Kevin, international attention and perceived gravity don’t necessarily go hand in hand (some would say this is particularly true when it comes to Israel, but that is a different debate…), but the PTC seems to be trying to resurrect the “social alarm” criteria of gravity that was killed off by the Appeals Chamber as early as 2006.

One last point which has always irritated me in gravity assessments: the use of the impact on victims. The victims and their family always suffer from the commission of crimes. How is that a relevant criteria, especially as you will never see an international judge come out publicly to say that “the suffering of this victim is worse than the suffering of that victim”. This is a valid point of course and I’m not disputing it. But we should stop pretending that the gravity threshold has any meaning in that case.

  1. The defensible general approach to review taken by the PTC

Beyond those additional points on what Kevin said in his posts, I would like to spend the rest of the this commentary on the general approach taken by the Chamber in relation to reviews of decisions not to open an investigation.

In that respect, while I do not like it one bit, I’m afraid I have to say that it does find support in the logical inconsistencies of the Rome Statute, which was perhaps a historical political compromise in 1998, but continuously reveals itself to be a legal Frankenstein.

Two particular aspects of the decision illustrate this.

  • On the standard of review

It is impossible to determine a standard of review in the abstract. It is necessarily related to the discretion afforded to the body whose decision is under review. It is therefore necessary to understand the nature of OTP discretion under article 53 before determining what a Chamber can do in reviewing it.

In that respect, the majority essentially claims that the OTP has no discretion under article 53, other than through the interests of justice:

 “The Chamber recognises that the Prosecutor has discretion to open an investigation but, as mandated by article 53(1) of the Statute, that discretion expresses itself only in paragraph (c), i.e. in the Prosecutor’s evaluation of whether the opening of an investigation would not serve the interests of justice. Conversely, paragraphs (a) and (b) require the application of exacting legal requirements.”

This is a perfectly reasonable reading of the statute. Article 53 refers back to article 17, and article 17 criteria of admissibility have been the object of a considerable number of judicial decisions and clarifications in virtually all the cases and situations at the ICC (a lot of these decisions can be criticized on a number of levels, but that is not the point here). It would therefore seem strange that when an actual admissibility challenge is raised, the judges get the last word, but when the prosecutor does an assessment under article 53, it would be fully discretionary.

To be clear, I believe that the Prosecutor should have discretion in its decision to open an investigation both in a situation and a case. In France, and other civil law countries, it is called l’opportunité des poursuites. Within that discretion, there are a number of factors that could be taken into account, such as ressources, or gravity (but not the article 17 gravity), but these would be policy criteria rather than strict legal criteria.

The reason there is a problem here is that the OTP should never have had an actual legal obligation to assess admissibility in its decision to open an investigation. It’s not his job. It is the role of judges to assess admissibility.

However, once you put article 53 in the statute, with reference in it to clear legal criteria defined elsewhere in the Statute, this, in my view necessarily implies both very limited discretion and therefore a strong judicial review. Indeed, what is the point in having article 53 in the statute if there is no judicial review? Without that, it is just literature.

On a similar point, I’ve never believed that admissibility should be looked at in the situation phase, whatever the referral mechanism used. I know that the statute seems to require it. As noted above it is required from the prosecutor under article 53. Moreover, it is also required from the PTC in the context of an article 15(4) decision to open a proprio motu investigation. Indeed, while article 15 actually doesn’t refer to article 53 or article 17, rule X of the RPE sends back to article 53, and therefore to article 17.

But this makes little sense for me. Article 17 refers to the admissiblity of a “case” and it is only through a clintonian trick that this has been applied to situations because “case” doesn’t necessarily mean “case”. Beyond that, it leads to some absurd results whereby situations might not be admissible, whereas individual cases are. For example, in Colombia, the OTP has always claimed that it cannot move forward because of complementarity, while NGOs have convincingly argued that certain crimes (false positives) have been systematically ignored and would warrant an ICC intervention. Another example is Ivory Coast. If the Prosecutor were to request the opening of an investigation today, given all the steps apparently being taken locally, the situation might arguably be deemed inadmissible. Yet the Laurent Gbagbo, Simone Gbagbo and Blé Goudé cases have all been declared admissible.

Another reason why I do not like admissibility assessments at the situation phase is that it pushes in the direction of becoming a monitoring body for entire domestic judicial systems, rather than looking at what is being done in a particular case. However, that is not the ICC’s mandate (even if some would like it to be). The ICC is not there to check whether a country that is transitioning from a civil war has put in place an adequate accountability mechanism for dealing with the perpetrators of mass atrocities.

As a result of this legal framework, the complementarity assessment at the situation phase is always going to be a little broad, a little vague, and therefore a little meaningless in terms of legal certainty. It’s not the judges’ fault, but that of the drafters of the Rome Statute.

  • On the gravity assessment

The same is true of the gravity threshold. In the abstract, this criterion makes sense. It is meant to give some flexibility in not pursuing cases that would not be worth the money spent, given the limited ressources of the Court. You do not want to spend millions on investigating an isolated cross border incident between two states, which might technically be a war crime, when a genocide is going on at the other end of the world. The problem is that nobody is going to come out publicly to claim that some crimes are worse than others. The answer you will get when you enter this discussion usually is: “all the crimes within the jurisdiction of the court are grave, that’s why we have the ICC in the first place”. Fair enough, but as a result, we don’t seem to be anywhere closer to actually defining gravity as a legal criteria now, than we were in 1998.

Indeed, the gravity threshold has been a nightmare to define by the judges at the ICC. I cannot go through all the case law here, but it has gone all over the place over the years. For example, the “most responsible” criteria was first introduced by PTC I to not issue a warrant against Ntaganda, but that was overturned on appeal. It was however reintroduced at the situation level by the Kenya decision, which is what the Comoros decision relies on. And now we have a new definition of it.

Another example is the criteria of “social alarm” also introduced by PTC I in 2006, and also rejected on appeal in no uncertain terms: “As to the “social alarm” caused to the international community by the relevant conduct […] the Pre-Trial Chamber has not explained from where it derived this criterion. It is not mentioned in the Statute at all. […] the criterion of “social alarm” depends upon subjective and contingent reactions to crimes rather than upon their objective gravity.” Despite this, “social alarm” seems to be reintroduced here to some extent by the PTC.

Beyond the confusion, the common point of all these decisions is however that gravity has never been successfully pleaded at the ICC to defeat the court’s exercise of jurisdiction, because that would be insensitive to whomever suffered from those crimes. As I noted at the time of the OTP decision not to open an investigation, gravity is essentially in the eye of the beholder and there is no way around that problem… except if you give one beholder the duty to draft clear legal criteria of gravity, which will necessarily not please everyone, but at least give some flesh to the concept. Until then, we will have endless and ultimately pointless discussions on the gravity threshold at the ICC, the definition of which will always be changing to make sure it is never applied, therefore making it simply meaningless.

As an aside, this statutory silence also explains the confusion between situational and case gravity. Indeed, we actually don’t have much of a clue what a situation is when reading the Rome Statute. As a result, while the Flotilla incident would seem to be closer to our idea of a “case” than that of a “situation”, there is no fundamental legal obstacle for it not to be a situation under the statute.

This is why I cannot really fault, once again, the judges of the PTC on principle, because the drafters created the space for them to say exactly what they want about gravity. Next time they should do a better job.

  1. A concluding recurring question

While this issue is not dealt with in the decision, I take the opportunity, one more time, to ask always the same question: how is the Gaza situation (blockade, NIAC, IAC, occupation, all or none of the above, etc.) legally relevant to the assessment of what happened on the boats? Indeed, it is certainly politically relevant, but legally, we have the army of one state attacking the ship of another state in international waters. What’s that got to do with Gaza?

This is what I said in 2014:

“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…”

I’m still waiting for the light…

3 responses to “ICC Judges ask the Prosecutor to reconsider decision not to investigate Israeli Gaza Flotilla conduct

  1. Pingback: ICC Judges ask the Prosecutor to reconsider decision not to investigate Israeli Gaza Flotilla conduct | eastafricanview

  2. Thank you for this comprehensive analysis. I didn’t get one point though: “Until then, we will have endless and ultimately pointless discussions on the gravity threshold at the ICC, the definition of which will always be changing to make sure it is never applied, therefore making it simply meaningless.” I didn’t get it, I mean the gravity threshold was applied before, how is that true then? (Or maybe I just didn’t get what you want to say)

  3. Pingback: EJIL: Talk! – The Situation Concerning the Mavi Marmara at the ICC: What might the next move of the Prosecutor be?

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