Questions About the Mavi Marmara Referral

by Kevin Jon Heller

In my previous post, I expressed my skepticism that the OTP will open a formal investigation into the situation — loosely defined — involving Israel’s attack on the MV Mavi Marmara. In this post, I want to raise two issues concerning Comoros’ referral that I find particularly troubling.

First, why is Comoros being represented by Turkish lawyers, the Elmadag Law Firm Istanbul? There is nothing wrong with a state outsourcing its legal work, of course, and most of the victims of the attack on the MV Mavi Marmara were Turkish. But if the referral is really being driven by Comoros, you’d think the government would be relying on lawyers in its Ministry of Justice — or at least on a Comorian law firm. Instead, the Comoros hired a foreign law firm that has already unsuccessfully requested, on behalf of victims and a Turkish NGO, the OTP to investigate the attack on the flotilla. (See para. 9 of the referral.) That suggests, in my view, that this new request is a “state referral” in name only — a smart litigation strategy, but a curious one.

Second, why now? The attack on the flotilla took place nearly three years ago, yet Comoros is only now referring the situation to the Court. The timing seems particularly curious given that Israel and Turkey appear to be making genuine diplomatic progress in resolving the Mavi Marmara crisis. Just a few weeks ago, Haaretz reported that Israel has agreed to pay “as much as tens of millions of dollars” in compensation to the Turkish citizens wounded and killed during the attack. This latest effort to get the ICC to investigate will not only fail, it could well harm negotiations between Israel and Turkey — especially as one of the points that apparently remains to be resolved is whether Turkey is willing to immunize the IDF soldiers involved in the attack. Indeed, a cynic might suggest that this new referral is designed to undermine those negotiations.

This referral clearly puts Fatou Bensouda in a difficult situation. My hope is that she will conclude her preliminary examination quickly and will release a detailed explain of why (I predict) the OTP is not opening a formal investigation into the attack on the flotilla. Doing so would provide Bensouda with an opportunity to affirm the Court’s potential jurisdiction over the attack — Article 12(2) means what it says about a ship qualifying as a state’s territory, although I assume the drafters of the article assumed that the OTP would investigate crimes committed at sea only as part of a larger situation — while explaining why it would not be appropriate for the OTP to investigate only one small aspect, and only one side, of the Israel-Palestine conflict.

UPDATE: Make sure to read excellent posts on the referral by Bill Schabas and Dapo Akande.

6 Responses

  1. Re: why now? The attack on the flotilla took place nearly three years ago, yet Cormoros is only now referring the situation to the Court.
    Why not? The Rome Statute hasn’t expired. The Prosecutor wouldn’t have touched the case with a barge pole while Turkey, Israel and the UN were still conducting investigations or while Turkey was still actively pursuing the case in its own courts.
    Israel has agreed to pay “as much as tens of millions of dollars” in compensation to the Turkish citizens wounded and killed during the attack.
    The fact that two of the states involved are concluding a deal on dropping criminal charges in exchange for compensation should trigger ICC jurisdiction. Israel and Germany have concluded several deals on compensation for various groups of war victims, but that hasn’t stopped them or the rest of the international community from holding individual war criminals responsible for acts they committed long ago, during WWII.  
    why is Comoros being represented by Turkish lawyers, . . . Instead, the Cormoros hired a foreign law firm that has already unsuccessfully requested, on behalf of victims and a Turkish NGO, the OTP to investigate the attack on the flotilla. 
    Lots of law firms are registered as foreign agents of other countries here in the US under the Foreign Agents Registration Act (FARA). The Turkish law firm had already collected evidence and depositions on behalf of the victims. It looks like they were initially unsuccessful in getting OTP to investigate precisely because they didn’t represent a State.

  2. I agree that a situation can involve one set of crimes or one crime out of one incident.
    I agree that the art. 12 circumstance has been met.
    Since it is merely a circumstance that should pertain for jurisdiction (among other possible circumstances), it should not matter whether a Trukish law firm was hired or there is some hidden Turkish interest at stake (which there undoubtedly is).
    I do not agree that the ICC should have to have jurisdiction over any other alleged criminal activity engaged in by Israelis or Palestinians or shouold have to decide whether Palestine can be a party to the ICC’s Rome Statute in order to handle a specific case before them.
    In the future, if G.W. Bush, Cheney, Rumsfeld, Rice, and others were alleged to have authorized or abetted war crimes (e.g., torture and cruel, inhuman treatment of detainees) and crimes against humanity (e.g., secret detention) in Afghanistan, which is a party to the Rome Statute, and another party refers the case to the ICC, I do not believe that the ICC would have to address the entire conflict in Afghanistan and/or elsewhere in order to address the specific case before them.

  3. Kevin, 
    Thanks for calling attention to the issue of the same counsel representing the victims and now Comoros. This not only helps to explain the origin of the referral, but also suggests a possible impediment to representation / conflict of interest problem under articles 12 and 16 of the Code of Professional Conduct for Counsel (excerpted below). The revolving door for counsel between OTP, defence, victims, and States has long been highlighted as a potential risk for the legitimacy of the ICC.
    Article 12: Impediments to Representation
    1. Counsel shall not represent a client in a case: 
    (a) If the case is the same as or substantially related to another case in which counsel or his or her associates represents or formerly represented another client and the interests of the client are incompatible with the interests of the former client, unless the client and the former client consent after consultation; 

    2. In the case of paragraph 1 (a) of this article, where consent has been obtained after consultation, counsel shall inform the Chamber of the Court seized with the situation or case of the conflict and the consent obtained. ….  
    4. This article is without prejudice to article 16 of this Code.
    Article 16: Conflict of Interest
    1. Counsel shall exercise all care to ensure that no conflict of interest arises. Counsel shall put the client’s interests before counsel’s own interests or those of any other person, organization or State, having due regard to the provisions of the Statute, the Rules of Procedure and Evidence, and this Code. 
    2. Where counsel has been retained or appointed as a common legal representative for victims or particular groups of victims, he or she shall advise his or her clients at the outset of the nature of the representation and the potential conflicting interests within the group. Counsel shall exercise all care to ensure a fair representation of the different yet consistent positions of his or her clients. 
    3. Where a conflict of interest arises, counsel shall at once inform all potentially affected clients of the existence of the conflict and either: 
    (a) Withdraw from the representation of one or more clients with the prior consent of the Chamber; or 
    (b) Seek the full and informed consent in writing of all potentially affected clients to continue representation.

  4. David K,

    Good point. But I’m curious: do you think submitting an unsuccessful communication on behalf of a client qualifies as representing that client in a “case”? Or does the communication at least have to lead to a preliminary examination? I have no idea what the answer is, so I’d like your thoughts.

  5. Kevin, 
    You raise an excellent question. 
    The preliminary question in my mind is whether the firm is still counsel for the victims. It’s probably not a problem if that representation is terminated, and in either case it could be avoided by getting informed consent in writing.
    Assuming the representation of both continues, and to turn to the definition of “case”, I don’t think the ongoing attempts to define “case” as opposed to “situation” or in the context of article 17 will be that helpful. Rather, we should look at jurisprudence and other “sources” related to professional conduct of counsel.
    To my knowledge, this is an issue which hasn’t arisen before the ICC to date (the only impediment to representation issues I’m aware of have been under 12 (1) (b) dealing with former OTP staff). I’m no expert on how these rules are interpreted in other jurisdictions (or whether the ICC would follow those interpretations) so it’s very difficult to say, without doing additional research. However, to proceed with uninformed analysis anyway, I’d note that rule 12 (1) (a) is similarly worded (and the initial draft code was even more similar) to Rule 1.9 of the ABA Model Rules (pasted below, along with the initial draft code), suggesting it draws inspiration at least in part from, and should be interpreted with reference to, the Model Rules.  Rule 1.9 of the ABA Model Rules uses the broader term “matter” instead of case (granted this is in part because it applies outside of the litigation context as well). I’d personally prefer a broader interpretation of “case” which equates it with “matter” and would seem to disqualify concurrent representation here, but the argument could also be made that the use of “case” in the CPCC deliberately indicates a narrower scope. It’s because of this ambiguity that I think article 16 on conflicts of interest is also relevant (the ABA Model Rules would treat concurrent representation under Rule 1.7(a) on conflicts of interest, rather than under a separate impediments provision).
    Another difficult question is whether the interests of the victims are “incompatible” with those of the State, which in a way gets us back to the conflict of interest question. At the stage of trying to get a case open, they seem compatible, but these interests may diverge as proceedings progress.
    Rule 1.9 (a) of ABA Model rules: (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
    Art. 11 (1) (a) of initially proposed code submitted by Registrar (ICC-ASP/3/11/Rev.1): Counsel shall not represent a client in a case: (a) If the case is the same or related substantially to another case in which counsel or his or her associates formerly represented another client and the interests of the client are materially adverse to the interests of the former client, unless the client and the former client consent after consultation;

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