Could the ICC Investigate Israel’s Attack on the Mavi Marmara?

by Kevin Jon Heller

This is very interesting. The Union of the Comoros, a state party to the Rome Statute since 2002, has formally referred Israel’s attack on the flotilla that included the MV Mavi Marmara to the ICC. The question I want to address in this post is whether the Court has jurisdiction over the flotilla attack. I think it’s clear that it does — although there is at least one important wrinkle in the analysis. But I also think it’s exceedingly unlikely the OPT will open a formal investigation into the attack.

In terms of jurisdiction, the critical provision in the Rome Statute is Art. 12, “Preconditions to Jurisdiction.” Article 12(2) provides as follows (emphasis mine):

In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:

(a)     The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;

The bolded text is critical. The Court has jurisdiction over an international crime only if that crime was committed by a national of a state party to the Rome Statute or on the territory of a state party. Art. 12(a) makes clear, however, that a vessel registered to a state party qualifies as the territory of that state. According to the referral, the MV Mavi Marmara was registered to Comoros at the time of the attack, 31 May 2010. (Comoros provides documentation of registration in an appendix to its referral that is not available on the ICC website.) For purposes of jurisdiction, therefore, the MV Mavi Marmara does indeed qualify as Comoros territory. And that means Art. 12 is satisfied.

The wrinkle in the analysis is whether the attack on the MV Mavi Marmara qualifies as a “situation.” States are permitted to refer situations to the Court, not specific crimes. Here is Art. 14(1):

A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.

Is Comoros referring a situation to the Court? All of the situations currently being investigated by the OTP — Kenya, Libya, Cote D’Ivoire, etc. — are much broader than the situation being referred by Comoros. That said, the referral is not limited solely to the attack on the MV Mavi Marmara. As Comoros’ supporting documentation notes, one other ship in the attacked flotilla, the MV Sofia, was registered to a state party — Greece. Moreover, the referral suggests that Israel’s June 6 attack on the MV Rachel Corrie, which was registered to Cambodia, a state party, should also be included in the overall situation. (The referral tries to link the attack on the flotilla to the situation in Gaza, suggesting that the attack would be part of any situation referred to the Court by Palestine. That’s clever but irrelevant, at least at this point, because Palestine has not yet ratified the Rome Statute.)

In terms of the Rome Statute’s legal requirements, I think that Comoros has indeed referred a situation to the Court. Article 14(1) speaks of situations in which “one or more crimes… appear to have been committed,” suggesting that even one crime can, in the right circumstances, qualify as a situation. (An attack with a nuclear or chemical weapon, for example.) The limited scope of the situation being referred by Comoros, therefore, should not legally disqualify the referral.

In short, the ICC does indeed have jurisdiction over the attack on the flotilla (and the later attack on the MV Rachel Corrie), so the OTP would be well within its rights to open a formal investigation into the attack. The real question is whether the OTP will open an investigation. A full answer is beyond the scope of this post, but I think it’s exceedingly unlikely. Although the limited scope of the referred situation is not legally disqualifying, I think it significantly reduces the situation’s overall gravity. To begin with, it is not clear whether any international crimes were committed on the MV Sofia or the MV Rachel Corrie (readers should feel free to weigh in), so the referred “situation” may, in practice, be limited to crimes allegedly committed on the MV Mavi Marmara. I don’t want to minimize the tragedy of nine civilian deaths, and I am no fan of determining gravity by simply counting victims, but I think the OTP would have a difficult time justifying a decision to prioritize the flotilla attack over many of the other situations it is considering, such as Colombia, Georgia, or Afghanistan.

Moreover, and more fundamentally, it does not seem sensible for the OTP to investigate one isolated component of the much larger conflict between Israel and Palestine. If the OTP ever does investigate that conflict — which, as I’ve discussed before, I don’t think it should — it needs to address all of the potential crimes, both Israeli and Palestinian. And that, I think, is the fatal flaw in the Comoros referral: it is essentially asking the OTP to investigate crimes committed by only one side of the conflict, Israel. Even if Israel’s account of the attack on the flotilla is correct and the IDF killed the civilians in self-defense, the ICC would still not have jurisdiction over the civilians’ actions — it is not a war crime to attack a soldier (though it could, of course, be a domestic crime).

Finally, a plea to the media: please do not overstate the importance of the OTP’s “decision” to open a preliminary examination into the attack on the flotilla. As the ICC’s press release notes, the OTP is required to conduct such an examination into every state referral, regardless of merit. I have no doubt that the OTP takes state referrals more seriously than referrals from individuals and human-rights groups. But that does not mean, nor does it even suggest, that the OTP will decide to open a formal investigation into the flotilla attack. Indeed, for all the reasons mentioned in this post, I think that is exceedingly unlikely.

18 Responses

  1. True that the ICC should investigate crimes by both Israel & Palestine in the conflict, but that doesn’t mean it is obligated to under the RS. If the situation referred to it is as specific as the Comoros referral, the Prosecutor may decide to, proprio motu, but is not obligated to, investigate wider crimes. That being said, in order to investigate these crimes, the OTP is likely to have to examine the wider Israel-Palestine conflict in order to attempt to demonstrate whether or not these attacks constitute war crimes. And certainly the only way that the flotilla attack can be even remotely considered to be crimes against humanity is if it is assessed in the context of the conflict as a whole, as of course 9 deaths is insufficient to amount to CAH (& you know I am, like you, not a proponent of the gravity by numbers approach).

  2. Response…That’s clever but irrelevant, at least at this point, because Palestine has not yet ratified the Rome Statute.
    Palestine has accepted the Court’s jurisdiction via the Article 12(3) declaration and produced evidence of mutual treaty relations with other ICC member states pre-dating the entry into force of the Rome Statute. The General Assembly resolution on its upgraded status cited its 1988 UDI and subsequent membership in other international organizations that are only open to participation by States. 
    If there is a dispute over a material fact, like statehood, that would be up to the Judges to decide at trial, not the Prosecutor.

  3. Hostage,

    To be sure — but the OTP has already rejected the declaration and made it clear that it won’t act until Palestine ratifies the Rome Statute.

  4. Response… the OTP has already rejected the declaration and made it clear that it won’t act until Palestine ratifies the Rome Statute.
    I hadn’t heard that.
    The former Prosecutor said that he wasn’t empowered to decide one way or the other. After the UN vote on Palestine’s status, the Times of Israel reported that the OTP had indicated the declaration was still under consideration:
    In a one-paragraph reaction to the historic United Nations General Assembly vote, the court’s prosecution office said Friday it “will consider the legal implications of this resolution.”

    She added that the ICC may be able to begin investigating Israel on the strength of the rejected 2009 PA request to join [sic] the Rome Statute that established the court.

  5. P.S. Sorry, here was the money quote from the article I cited above:
    A statement in September by ICC prosecutor Fatou Bensouda suggested that the court may gain jurisdiction over the Israeli-Palestinian conflict automatically through the General Assembly’s recognition of Palestine as a nonmember observer state.
    “What we have also done is to leave the door open, and to say that if Palestine is able to pass over that hurdle [of statehood] — of course, under the [UN] General Assembly — then we will revisit what the ICC can do,” Bensouda told a Council on Foreign Relations event in Washington.

  6. I think her statement in March of this year is pretty clear, assuming that what she said is being reported correctly:

    She started her reply by recalling why Palestine’s initial application was not approved — essentially, as was clear from the ICC’s response, the court’s view that it was not the role of the court, but rather the role of the UN General Assembly, to determine who was or was not a state. She then went on to say that, now that the UN General Assembly had made its determination that Palestine is a state, “the ball is now in the court of Palestine”, “Palestine has to come back” and “we are waiting for them.”

  7. Re: I think her statement in March of this year is pretty clear, assuming that what she said is being reported correctly.
    Yes, you’re right about that. But her opinion on retroactivity – as stated there – is inconsistent with the notion that it’s not the Court’s job to decide if Palestine was a State capable of making the 2009 declaration. Other criminal courts have made such determinations, based upon relations with other existing states. See for example, “The Prosecutor v. Slobodan Milosevic – Case No. IT-02-54-T, Rule 98 bis test – Deportation, forcible transfer and cross border transfer – Definition of a State” —
    Statehood was a pre-requisite, not a consequence of the UN resolution. The General Assembly didn’t say that Palestine became a state on November 29, 2012. In fact, the recitals in the resolution contained a list of qualifying acts and acceptance of its statehood by others dating back to the November 1988 UDI.
    In “The international law of recognition, with special reference to practice in Great Britain and the United States” Ti-chiang Chen explained that the customary practice of states to consider recognition retroactive to the commencement of those first official acts can only be explained by the fact that the entity has always had existence prior to recognition, and independently of it.
    That reality would seem to be reflected by the fact that the majority of the High Contracting Parties to the Montevideo Convention had already recognized Palestine before the UNESCO or General Assembly votes (some ever since 1988). Like the Rome Statute, that convention doesn’t contain a compromissory clause that would permit the Prosecutor or the Court to challenge their determinations on the subject. So I have to conclude, like you, that the ICC just doesn’t want to stir up a hornet’s nest in the case of the I/P conflict. 

  8. Hostage,

    I completely agree — and have argued before that the retroactivity question is more complicated than many people assume. That said, I doubt the Court would go out on a limb and conclude that Palestine was a state before the UNGA vote.

  9. The referral itself lists the war crimes, and bases itself on the report of the UN Fact Finding Mission:
    War crimes do not have to be part of a ‘plan’ or ‘policy’, contrary to crimes against humanity.
    Also, I think this whole gravity concept is somehow an empty box. The OTP is prosecuting Darfuri rebels for an attack on a peacekeeping mission, which seems to be of a similar gravity, so in my opinion it would be hard for the OTP to justify a decision to decline to investigate based on this argument

  10. Why is no one saying anything about the way they misquoted the Appeal Chambers decision on gravity??
    In their referral they write: “International reaction – As stated by the Appeals Chamber of the ICC, an assessment of the gravity of the relevant conduct “depends upon subjective and contingent reactions to crimes rather than upon their objective gravity.”
    That is completely false. the ICC Appeals Chamber said the exact opposite, noting that the social alarm test should be rejected as it is far too subjective and contingent upon reactions to crimes.
    I think this serves as one example which shows such how poorly constructed this entire document is. The ICC might have jurisdiction to investigate this alleged ‘situation’, but there is absolutely no question that it should not commence such an investigation, based primarily on gravity and complementarity arguments. 
    As a side note only quoting IHH and Human Rights Council reports  while completely ignoring the Turkel Commission report and the United Nations Palmer Report, shows too just how misguided and politcally-driven this referral really is. 

  11. Asaf,

    I’m not complaining, because I’ve consistently argued against the AC’s rejection of “social alarm” as a gravity criterion… 🙂

    (But you’re absolutely right. The gravity section of the referral is extremely weak.)

  12. Response…That said, I doubt the Court would go out on a limb and conclude that Palestine was a state before the UNGA vote.
    Agreed, but there’s no shortage of information in the public domain about attacks on Gaza fishing vessels in the IDF-imposed 3 mile limit since that time.
    Among other things, the Goldstone Mission report asked the OTP to look into Israeli actions which denied the inhabitants their own means of sustenance. At one and the same time, the mission highlighted interference with delivery of adequate levels of international humanitarian aid too. The Comoros referral cites the Goldstone report on that point and calls attention to the “wider context of the attack” on the Mavi Marmara.

  13. Hi Kevin,
    I have posted my own take on the ‘situation’ over at Spreading the Jam. Also, while I would love to agree with you on gravity, I’m wondering if the Abu Garda precedent is not in our disfavor.
    One thing I’m not sure I agree with you, is this idea that all sides of the conflict should be prosecuted. I can see the sense in this remark on a certain level, but it is premised on alleged functions of international criminal courts that are often overplayed, such as establishing a historical record of a conflict, or reconciliation. The ICC prosecutes and that’s it. If, as a nice consequence of that, some people fall into each others arms and make peace forever, that’s obviously a good thing. But the exercise of jurisdiction cannot be premised on that in my opinion.

  14. Dov,

    The Abu Garda prosecution was one case within a much larger situation involving multiple prosecutions. So I don’t think it’s particularly useful precedent for the idea that one attack makes a situation grave enough to investigate. Hard to imagine that (in a world, say, where Sudan was a state party to the Rome Statute) the OTP would have opened an investigation into just the Abu Garda incident.

    I generally agree with your comment about not always having to prosecute both sides to a conflict. But again I’d distinguish between situations and cases. I understand opening an investigation into a situation in which crimes have been committed by both sides, but focusing — at least initially — on the more responsible side. But that strikes me as very different than opening an investigation into a situation that, by design, includes only crimes committed by one side.


  15. Kevin,
    I agree that gravity of the situation and gtavity of the case might not be the same, but given the lack of clarity on that point, I thought the Abu Garda precedent could nonetheless be interesting to recall.
    Any thoughts on the ‘situation’ issue?

Trackbacks and Pingbacks

  1. […] define ‘situation’ but it is taken to be broader than a case. I agree with Kevin Jon Heller at Opinio Juris that though the incident referred by Comoros is much narrower than other situations referred to the […]

  2. […] הפלילי הבינלאומי (ה-ICC). קווין ג'ו הלר בוחן ברשימה "Could the ICC Investigate Israel’s Attack on the Mavi Marmara?" שפורסמה בבלוג opinio juris את סמכות התובעת לחקור בפרשה […]

  3. […] In the past, there were allegations that the Court focused on punishing persons from the continent. We also discussed Africa in light of universal jurisdiction and the fact that the limited capacity of international mechanisms to deal with the scale of violations has redirected attention to domestic courts both within the state where the crime was committed and abroad. Akande’s comments brings an interesting perspective following Palestine’s failed attempts to to bring Israel before the ICC. His parallels to the political context in which the ICJ decided a case against the US, brought by Nicaragua in 1986 is clever (for further discussion on the referral see also here and here). […]