ICC OTP closes preliminary examination in the Marvi Marmara incidents: some thoughts

On 29 november 2017, the Prosecutor of the ICC issued its decision announcing that it is closing the Preliminary Examination in the Comoros situation, more commonly known as the situation relating to incidents aboard the Mavi Marmara. It annexes a 145 page report explaining its position in detail.

Followers of this blog will recall that this issue has been ongoing for some time now. The Prosecutor received a referral in May 2013 (see my comments at the time here) and issued a decision to proceed in November 2014 (see my comments here). In July 2015, following a request from Comoros, a Pre-Trial Chamber requested the Prosecutor to reconsider her decision (see my comments here). Now, a few years down the road, the Prosecutor has decided to confirm her initial assessment of the situation and declines to open a formal investigation.

I have commented in the past on various aspects of the issues: why I think the referred incidents stretch the definition of a “situation” beyond recognition, why I’m not convinced that legally speaking, the relevant armed conflict is the conflict between Israel and Palestine or why I think that the whole procedure shows that the gravity test of admissibility is today inapplicable at the ICC.

I also generally agree with the OTP’s basic position that it has the discretion whether to open an investigation or not, based on its own policy considerations. In that context, gravity is for me simply one of those policy considerations, rather than a criteria to be taken into account in the context of a formal determination of admissibility of cases, which in any case I don’t believe should be part of a PE at all, but that is a different debate.

[UPDATE: Kevin Jon Heller has posted his own take on the decision, focusing on the way that the OTP assesses gravity from the perspective of a “case”, rather than doing a situational assessment of gravity. This is a problem we had both identified in the first report, and I find Kevin’s critique quite powerful: by considering that the situation is admissible if at least one case within it would be admissible, then the OTP has likely created a situation that “will almost certainly come back to haunt the OTP in future preliminary examinations”, as put by Kevin, because there will always at least one case that will be of sufficient gravity within a broader situation being considered during a PE.

While I fully agree with Kevin on principle, I think that the problem lies elsewhere: in the fact of assessing admissibility, and gravity as one of its components, at all during a PE. Assessing admissibility during the PE requires looking at “potential cases” and whether they would be admissible. That is what the case law says. This also applies to gravity. Therefore, assessing gravity as a component of the admissibility test necessarily requires looking not at the situation as a whole in my view, but merely at “potential cases”. There is in my view no room for Kevin’s situational gravity in that context.

Another thing entirely is to consider gravity as a policy element that the OTP would look at in order to determine whether to initiate a formal investigation or not. Within that framework, situational gravity is a perfectly acceptable standard which I fully agree with.

In sum, the OTP’s approach, while possibly unworkable and misguided, is the natural consequence of the combination of a possibly misguided drafting of Article 53 and a less than convincing interpretation given by the Pre-Trial Chamber in the Kenya decision to open an investigation of Article 17 to make it apply in the context of Article 15(4) decision authorising the Prosecutor to open an investigation]

I will not express an opinion on the substance of the outcome and I’m sure that there will be a lot of commentary on the factual findings of the OTP on the events that allegedly took place that day and undoubtedly a lot of criticism too given the international attention received and more generally the passion that surrounds anything related to Israel and Palestine.

I just want to share a few thoughts on the approach taken by the OTP in what is a remarkable document in many respects.

• A strange “judicial” dialogue

It is interesting to note that a large portion of the report is devoted to criticising the Pre-Trial Chamber decision of 2015 and explaining why the Pre-Trial Chamber erred in its reasoning. Three thoughts come to mind in relation to this.

First, I’m not sure it is an entirely appropriate place to do this. It seems like someone at the OTP, who had worked very hard to write the OTP’s appeal that was deemed inadmissible by the Appeals Chamber, did not want it to go to waste.

Second, on the substance, I find that it is a well argued position on why the Pre-Trial Chamber erred by essentially substituting its own understanding of the facts, rather than demonstrating that the Prosecutor had erred in its own factual findings.

The OTP points out that the Pre-Trial Chamber embarked in a de novo determination of the facts… without ever requesting to consult the information underlying the report, as envisioned by Rule 107(2) of the RPE. As a consequence, “Disagreements concerning the evaluation of the available information can only be given very limited weight by the Prosecution when the reviewing body has not had opportunity to examine the available information itself” (report, par. 68).

The OTP also points out that the Chamber imposed a standard by which the Prosecutor should exclude all factual scenarios which would warrant an investigation before deciding not to proceed further, which is, according to the OTP, an unreasonable standard. In the convincing words of the Prosecutor (par. 158):

The majority thus simply disagrees with the Prosecution’s conclusion, positing that an alternative ‘reasonably possible’ interpretation may exist—even though it is not directly grounded in the facts as they have reasonably been understood by the Prosecution. In other words, the majority’s approach appears to impose a burden upon the Prosecution to conduct an investigation unless it can eliminate all reasonably possible speculations about the apparent facts which might satisfy the article 53(1) test, rather than a more orthodox approach in which the Prosecution positively has to identify information supporting its conclusions at the appropriate standard of proof. Such an approach leads to potentially untenable consequences—if investigation is only precluded when the circumstances are such that the available information excludes even speculation that the gravity threshold might be met, then in effect all preliminary examinations will result in investigation. This is inconsistent  with the object and purpose of the Statute, and the particular scheme laid out in article 53, and cannot be correct.

Third, this “dialogue” between the Pre-Trial Chamber and the OTP shows how absurd this all review procedure is. The Pre-Trial Chamber is given a power to review that has absolutely no legal authority over the OTP, with the ultimate result that the OTP can simply disagree with the Judges without any consequences. I don’t know what the drafters had in mind exactly, but they should have either given a clear power to the Chamber to review an OTP decision not to proceed and the corresponding power to force it to do so (which is the whole point of judicial review after all) or not bothered at all. What we have in the Statute currently is probably another one of these lame Rome compromises along the lines of “we need to respect the independence of the Prosecutor, but cannot let her entirely do what shes wants” which probably made some diplomatic delegations happy, but sets up a procedure that in its current state is a waste of time for everybody.

• The methodology for evaluating evidence

As I said, I will not risk myself to give an opinion on the substance of the evaluation of evidence. I do find it interesting to note how the Prosecutor approached available information in a critical way.

Indeed, I find the analysis of the information, particularly eye-witness statements uncharacteristically detailed and thorough, especially compared to other documents relating to PEs in other situations.

For example, regarding the allegation that there was live-fire before the boarding of the ship, the Prosecutor provides a detailed analysis of the credibility of the 10 eye-witnesses put forward by the Comoros and their lawyers, noting for example that one of them was on another ship, that another claimed to be below deck when the boarding occurred so could not possibly see if the IDF had started shooting before boarding the ship, or that some have made obvious material mistakes in their recollection of the order of events. The OTP also notes that 4 eye-witnesses “were actively participating in the resistance aboard the Mavi Marmara at the material times” and that therefore “There is also a heightened risk of bias, both to justify their own actions and potentially to impugn the conduct of the IDF” (par. 122).

Another example is the OTP’s evaluation of the form of the statements received from the Comoros. The OTP notes (par. 182)

that many of the personal accounts appear to reflect some form of contact or link between their authors. In particular, the information available may lead to the conclusion that some persons who have sought to participate in these proceedings as victims have not only received some organised assistance in the practical arrangements to submit their applications, but also some forms of assistance related to the content or presentation of the accounts that they provide.

and then goes on to list striking similarities in the statements, despite the fact that there is no indication in them that they got help in drafting them, concluding that this was not “good practice” and could taint the evaluation of the evidence (par. 184-186).

My initial reaction is to welcome the OTP’s attitude in taking its independent capacity to review information seriously and not just take everything it receives at face value. But you have to wonder why this level of scrutiny does not always appear to be applied in all PEs.

Of course, the “situation” that was referred to the OTP which is essentially one incident, lends itself better to this kind of analysis than a PE relating to crimes committed in a whole country over a long period of time. In a mavi marmara scenario, the OTP has the luxury of devolving 150 analysing the evidence relating to one incident. If such a process had been followed, say in the Afghanistan request, it would have been several volumes long. But, from a legal perspective, this practical difference should not in principle have an impact on the level of scrutiny over the available information during a PE because the OTP should be applying the same standard of review in a consistent and uniform way. It cannot be that some investigations are opened essentially on the basis of untested NGO reports, while other investigations are not opened based on a more thorough analysis of the information.

There is one possible explanation for this level of scrutiny  in this particular situation.  When reading the report, there is this lingering feeling at some places that the OTP feels it is being manipulated by the lawyers for the Comoros and that as a consequence the file they received might not be entirely trustworthy… Of course this is never said explicitly in the report, but, if true, it might explain the OTP’s particular approach here.

• What next?

Is this the end of the matter? It seems so, at least procedurally. Rule 108(3) provides that:

Once the Prosecutor has taken a final decision, he or she shall notify the Pre-Trial Chamber in writing. This notification shall contain the conclusion of the Prosecutor and the reasons for the conclusion. It shall be communicated to all those who participated in the review.

This seems to suggest that this is a “final decision”, i.e, not subject to a new review under Article 53(3)(a). And this is what the OTP thinks. I agree. Any other interpretation would transform the procedure into a never-ending kafka-like process, where the referring State could indefinitely approach a Pre-Trial Chamber to obtain a review, when the Pre-Trial Chamber would indefinitely request the Prosecutor to reconsider and where the Prosecutor would indefinitely have to decline.

In practice, I would imagine that lawyers for Comoros will still try to keep this issue alive one way or another and given the sympathetic ear they received the first time around, one cannot exclude that the PTC would allow itself to be seized of the matter once again, so we might be up for more excitement in coming months…

Also, one must not forget that there is currently a preliminary examination in the situation in Palestine. Right now, the 12(3) declaration made by Palestine only goes back to 2014, so does not cover the Mavi Marmara incident. However, according to some commentators, Palestine can always do another 12(3) declaration in the future to go back further in time (I disagree), and include the Mavi Marmara situation. In that case, the OTP would have to consider the incident in the broader context of the armed conflict, which it refused to do in the current situation given the limited scope of the referral. Would that lead to a different outcome? maybe technically yes, but from a policy perspective, I would imagine the OTP would have bigger fish to fry in such a broader situation and would still  possibly not proceed further, drowning the incident in a broader discussion of the context.