Guest Post: Jurisdictional Aspects of the Article 12(2) Rome Statute Vessel Provision: Some Thoughts on the Provision’s Dogma and Implementation in light of the Comoros Referral

by Solon Solomon and Jackson Nyamuya Maogoto

[Solon Solomon will join King’s College of London, Dickson Poon School of Law as of September 2013, and Jackson Nyamuya Maogoto is a Faculty member of the University of Manchester, School of Law.]

Much has already been written on the Comoros referral to the International Criminal Court (ICC) in light of the Mavi Marmara incident (EJIL:Talk!, Opinio Juris, Human Rights Blog and Dov Jacobs Blog). The referral while premised on a legal footing arguably has a second facet which is significant—political. It is as been noted elsewhere (EJIL:Talk!) that this was the first case where an African state referred a non-African state to the Court. The political parameter aside, the Comoros referral introduces two important doctrinal issues which pervade the discussions of this referral. These are article 12(2) of the Rome Statute regarding vessel jurisdiction and the legal discourse around the axiom that all State Parties can refer to the Court possible crimes perpetrated on the territory of a State Party. The authors’ assertion is that the two spectra have wider implications for future cases and thus their elaboration is essential in the realm of the Prosecutor’s response to the Comoros referral.

As far as jurisdiction is concerned, we add our voice to authors who have so far who have held this is asserted. (See EJIL:Talk!, Opinio Juris and Human Rights Blog-spot) In this particular piece we would like to argue that such an assertion is de lege lata and not necessarily the case de lege ferenda. The assertion of jurisdiction derives from article 12(2)’s grammatical reading. However it is imperative to bear in mind that since the Rome Statute is a negotiated treaty, it is subject to wider reflection other than the narrow confines of the black letter provision. In this regard we aver that as a treaty, the Vienna Convention on the Law of Treaties (VCLT) is at play and in this regard invite consideration that the treaty provisions as provided for in the VCLT should be read in their contextual and historical depth, including their negotiation history and the volition of the parties. As such, there are elements that accompany the Rome Statute provisions on vessel jurisdiction which while not embedded in the wording of the provision itself, still constitute part of its essence. The Rome Statute provision was drafted along the lines of article 91 of the UN Convention on the Law of the Sea (UNCLOS). The latter, echoing a strong jurisprudence and treaty tradition stipulates and favours the notion that there must be a genuine link between the flag state and the vessel. This genuine link requirement is critical. While in some instances judicial bodies may have appeared reluctant to assert it, the reason was not its denial, but judicial and academic fears that a strict diligence to the principle would eventually preclude the forging of any nationality bonds, a far worse scenario.

In the MV “Saiga” (No.2) case, the International Tribunal on Law of the Sea expressly stated that the role of the genuine link requirement is to secure more effective implementation of the duties of the flag state. UNCLOS does not envision an arrangement where states just confer nationality to ships and then are not at all engaged in their activities. Nationality is regarded as having a functional character. States try to protect social bonds of attachment against mere formal nationality imposed by the technicalities of law. This functional inquisition is evident in diverse fora. For example in the case of UN sanctions, such as those against Serbia and Iran, the relevant Security Council Resolutions considered the nationality of the vessel based on ownership or contract terms, regardless of the flag under which the ship may sail. (see UN SC Res 787 (1992) and UN SC Res 1929 (2010)). Essentially then, Article 91(1) of UNCLOS should be read in conjunction with article 94, in a way that the exercise of effective jurisdiction over the vessel constitutes one of the necessary conditions for granting nationality. It is thus too long a legal bow to draw that with embryonic jurisprudence on the subject, the ICC will have in mind previous positions and thus reflect on its article 12(2) vessel jurisdiction as not only encapsulating the straight line reading on flag jurisdiction but also the matter of a genuine link with the vessel particularly given the nature of its mandate.

In the case of Comoros, the Mavi Marmara was Comoros flagged just a week before the flotilla incident.  Most of the passengers on the vessel were Turkish citizens and comprised the bulk of the people onboard killed in the incident. While formally, de lege lata, the vessel remains a Comoros vessel and thus part of its territory, de lege ferenda, the substantial links of Turkey with the vessel grants leeway for contestation between the legal and the factual realities. Admittedly the legal baseline is straightforward regarding the legal standing of the flag state but the matter is muddied by the fact that the acts for which the referral was made related to Turkish citizens. To draw into argument, in international practice often when two state entities have claimed representation rights for the same territory, the amalgam of law and fact has tended to be important alongside bright line legal provisions. Legally, the preponderance of Turkish interest does not necessarily erode Comoros jurisdictional rights. However the lattice of interests can lead to a concurrent responsibility over the vessel. This is not fanciful. In the Catan Case, the European Court of Justice held both Russia and Moldova responsible for human rights violations in Transdniestria. The premise was with regard to Russia it was on the basis of its effective control over the region and for Moldova, the fact that the region officially forms part of its territory under international law. In what essentially was a largely a bright line legal scenario, the hard factual reality was also seen as pertinent and in our opinion this stance mitigated making a mockery of the law by slavish adherence to technicalities.

The upshot of the discussion above is our opinion that Comoros and Turkey can lodge a referral on behalf of the Mavi Marmara before the ICC. This said, in order for disorder not to be created by two jurisdictional competing claims, it has to be examined if one of the two states has priority in bringing the case to the ICC. While international criminal law does not provide for such priority, this can be established by reading article 12(2), in tandem with the VCLT, pursuant to object and purpose and the extant ICC mandate to punish serious crimes. In the context of the flotilla incident, this is alleged crimes perpetrated onboard the vessel allied with protection of the vessel’s crew and passengers. These goals are common between the provision and the law of diplomatic protection. It is under this lens that the law of diplomatic protection can be useful. The latter does establish that Turkish rights over the vessel should take precedence. The diplomatic protection framework has the protection of the crew as its main aim. The Commentary to Draft Article 19 on Diplomatic Protection clarifies that the right of the flag state to institute proceedings was rendered critical due to the fact that one state would seek redress on behalf of all crew members in light of the crew’s multinational character. In the seventh report on rules of diplomatic protection, the flag state is mentioned under the rationale that ships crews are vulnerable and require all the protection they can get. While in the end redress by the flag state was retained, there were objections in its inclusion in the relevant provision. In light of this, flag state intervention is trumped by that of the nationality of the crew state. The Comoros intervention should recede before any Turkish initiatives. Indeed, this has been the case. It is important to recall that three years since the incident, it is Turkey that has actively participated or instituted proceedings in international and domestic fora. (See UN Panel Report, Human Rights Council, Turkel Committee and Turkey Ministry of Foreign Affairs Interim Report)

It can even be argued that Turkish jurisdiction on the vessel could well verge on being exclusive. The Mavi Marmara while registered under the Comoros flag, reportedly continued to fly the Turkish flag. According to article 92(2) of UNCLOS “A ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality.”

In international theory and practice there is disagreement whether the fact that a vessel is stateless means that all states can exercise jurisdiction over it or just the crew’s nationality state. If Mavi Marmara is deemed a stateless vessel, only Turkey would be able to legally protect the crew’s legal interests in the international and domestic legal fora. The vessel would not be considered Comoros territory. With Turkey not being an ICC member, Comoros or any other ICC member state can not refer the case even on the grounds that the alleged crimes were perpetrated on the territory of a member state. Rather it is Turkey that can refer the case to the ICC, not only by asking the Prosecutor to intervene on a proprio motu base, but also by lodging a referral in tandem with article 12(3).

The second issue we would like to comment upon relates to the irrelevance of the Comoros flag state link since any State Party could have made the referral, once the alleged crimes were committed on the territory of a State Party. (See EJIL:Talk! and Dov Jacobs Blog) Indeed, although this is the legal mantle that governs the referral system, it is important to stress that the latter does not exist in abstracto but as part of the Rome Statute. As such, any interpretational platforms it introduces and any practical solutions it may suggest should not collide with good faith. As is the case with the article 12(2) vessel jurisdiction regarding state referral of crimes committed in another state party, there is a de lege latade lege ferenda tension that we think can not be ignored.

Indeed, State Parties have the right to refer to the Court alleged crimes perpetrated in the territory of a State Party. The doctrine is not questioned. Our concern relates though to how this discretion is implemented. On this point, we would like to add our voice to the skeptical tone elsewhere (Dov Jacobs Blog) and argue that any such discretion must be implemented in good faith and in respect of every state’s sovereign prerogative to freely establish its interstate political agenda.

It would be erroneous to conclude that any state referral discretion should be interpreted as the right of any member state at a time of its choosing and its discretion as to a situation to intervene, irrespective of any domestic, regional or third-party understandings. This would lead to chaos and mistrust in international relations. Rather it should be conceded that any state referral discretion should relate to cases where the state which has the primary obligation of doing so, has appeared unable to perform such function. As such, judicial comity where courts hold back from adjudicating in cases other judicial bodies are seized with a case, could apply mutatis mutandis in interstate relations, with states holding back in the submission of judicial complaints once another state is already seized of the matter.

For three years since the flotilla incident, and despite intense activity on the matter in various judicial and quasi-judicial bodies, Comoros remained silent. It was once Turkey seemed to close the issue that Comoros stepped in and fanned the flames anew. (See Dov Jacobs Blog) Turkey was thus caught in off guard with a fait accompli. It must either side with Comoros, betraying the understanding it has reached with Israel or find itself opposite Comoros in this complex legal and political drama. On a similar vein, Greece and Cambodia are two other states which could without their initiative or action, find themselves engaged in the proceedings, if the Prosecutor decides to open an investigation being as they are State Parties on whose territory the alleged crimes took place in a mechanistic reading of article 12(2) since the flotilla encompassed vessels registered to them and thus part of their territory. (See Opinio Juris and Dov Jacobs Blog) It is our position that these scenarios should be discouraged. While the technical legalities of the drama may be clear, the practical political realities of international law are not far behind more so on this matter. Placing states with no dispute history between them (the case of Israel and Cambodia or Israel and Greece) or states sharing a right (Turkey and Comoros) opposite each other in litigations which they have not commenced or approved puts into question the stability principle in interstate relations. Ultimately, it casts doubts on the credibility of international law itself and this is something that has to be addressed.

In this short note, we deliberately did not enter in any issues of admissibility, since we strongly believe that jurisdictional issues raise interesting points on their own which should merit a thorough discussion among international legal theory as well as by the Court itself.

7 Responses

  1. Response…Any good faith reading of the VCLT would have prevented Ocampo from questioning the fact that Palestine was a state after the UNESCO vote confirmed it and placed it firmly in a special category of states explicitly recognized by the VCLT. It would have also precluded him from revoking its right to accept the Court’s jurisdiction in writing without obtaining the consent of all the other signatories who had formally agreed to grant that right to non-member states.
    I think the authors are misreading the intent of the Rome Statute if they truly believe that Turkey and Israel could “close the issue” by cutting a behind the barn deal to drop the criminal charges and court proceedings against the suspects. That’s really what caught the world by surprise after a 3 year long delay. The State Parties and the Court are supposed to put an end to impunity, not mechanically rubber stamp or encourage it.
    A Prosecutor in Spain also asked the courts there to initiate a referral of crimes against humanity, including illegal detention, deportation, and torture of victims of the attack on the flotilla. 
    If more than one State party can refer a situation to the court as a last resort, why dwell on the rationale of the one that did it first or the one that finally decided to do it? 

  2. With respect,
    I think that a close reading of the Nottebohm and the Saiga judgments warrant exactly the opposite conclusion. It is especially obvious with the Saiga judgment where the quotation was truncated by the authors. Let me quote a passage from one of my upcoming papers:
    “The conclusion that the principle of effective and genuine link is not a general principle governing the acquisition of nationality is reaffirmed by the subsequent jurisprudence of the ICJ, which avoided ruling on this issue. The sole reference to the principle of genuine link in international codification can be found in 1958 Convention on the High Seas.30 Article 5 (1) prescribes the existence of a genuine link between the state and the ship for the determination of the nationality of the ship and Article 91 of the 1982 UN Convention on the Law of the Seas follows the same approach. However, when relying on that provision Guinea claimed that it was not obliged to recognize the Vincentian nationality of M/V Saiga – a commercial vessel registered in Saint Vincent and the Grenadines – due to the absence of a genuine link to the state, the International Tribunal for the Law of the Sea flatly rejected this argument. The Tribunal explained that ‘the purpose of the provisions of the Convention on the need for a genuine link between a ship and its flag State is to secure more effective implementation of the duties of the flag State, and not to establish criteria by reference to which the validity of the registration of ships in a flag State may be challenged by other States.’ Consequently, the genuine link requirement cannot be interpreted to deny legal effects flowing from a nationality which was granted in accordance with the local regulations. 

  3. The authors raise a very interesting point regarding the statelessness of the Mavi Marmara. First, in this regard it seems the following quote from the US 11th Circuit Court of Appeals in the United States v. Marino-Garcia case is of great relevance: “Vessels without nationality are international pariahs… [T]hey represent ‘floating sanctuaries from authority’ and constitute a potential threat to the order and stability of navigation on the high seas”.
    Second, it would actually seem that Israel would be able to assert its own jurisdiction over the vessel. While the authors are correct in noting that the stance (such as that adopted by the Privy Council in Naim-Molvan and by US courts) that all States may apply their jurisdiction upon stateless vessels is disputed, even if a narrower approach is adopted (such as that taken by Churchill & Lowe, Law of the Sea 213-14 (3rd ed.)) a nexus between the State and the vessel may suffice. Accordingly, considering the Mavi Marmara was in violation of an Israeli naval blockade, such a nexus exists (an example noted by Churchill & Lowe is when a stateless vessel enters a State’s maritime zone).

  4. Re: The authors raise a very interesting point regarding the statelessness of the Mavi Marmara.
    The authors didn’t argue that the ship was stateless.
    I don’t think that either the law as it exists today, or the law of the future should allow anyone to commit acts against an unrecognized or stateless group that would otherwise be crimes in the case of victims “linked” to a state. The acts listed in Article 7 of the Rome Statute today are considered crimes when committed against any civilian population precisely because they were once directed against stateless Jewish and Roma communities.
    The authors of Article 12(2) surely didn’t intend to create a loophole that would allow others to be held harmless after committing those acts against ships flagged by one of the member states. The raison d’être of the Statute is to end impunity, not to create new avenues for its exercise.
    Re: Accordingly, considering the Mavi Marmara was in violation of an Israeli naval blockade, such a nexus exists (an example noted by Churchill & Lowe is when a stateless vessel enters a State’s maritime zone).
    The UN inquires noted that the flotilla was attacked, without prior warning, 60 miles outside the published coordinates of the blockade zone. The alleged violation is a disputed material fact that would have to be decided by the trier of fact.

  5. Hostage,
    The authors make precisely that point they quote Article 92 of the UNCLOS: A ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality“. A ship without nationality is accordingly stateless.
    An equivocation should not be made between stateless persons and stateless vessels. The former is a phenomenon deeply regretted by the international community. The latter are vessels that evade law and order at sea (which according to the Palmer Report seems to be the nature of the Mavi Marmara‘s venture).
    The authors are correct in asserting that Article 12(2) should be read in the context of other international norms binding upon the parties to the Rome Statute (Art. 31(3)(c) to the VCLT). Consequently, It seems entirely reasonable not allow jurisdiction to be created where it simply doesn’t exist for Comoros. Furthermore, municipal courts and international tribunals have made a clear distinction between procedural questions and those of substance (e.g. DRC v Rwanda, para. 64). The mere fact that alleged grave human rights violations are alleged (which is a severely disputed topic within itself) cannot serve as a basis for jurisdiction for an international tribunal where it simply does not exist.
    Regarding your point on the naval blockade, the Palmer Report made the matter clear:
    “108. On the best view we can form of the matter we believe it was reasonable in the circumstances for the Israeli Navy to conclude that the vessels of the flotilla intended to proceed to Gaza. That is what they repeatedly said. That intention was consistent with an intention to breach the blockade”.
    Even if the vessel did not enter the blockade zone, it is evident from the Report’s remarks that a nexus exists.

  6. The authors make a very interesting point regarding the referral system established by the Rome Statute. The vessel flag in question is no doubt a  relevant point concerning the ability to refer a situation to the ICC, and must therefore fit within the parameters of Article 12 (2) of the Rome Statute. However, there is a wider issue here at stake, that is the process itself that leads a State party to refer a situation to the ICC. The Court is still in need to establish its credibility and reputation. Moreover, during the Rome Statute negotiations one of the main issues was to ensure that new Court would not become a political institution. Therefore, the Court must proceed very carefully with regard to its decision on the Comoros referral. It is true that, if this referral succeeds and the Court decides to start the necessary investigations, it will be an opportunity to widen its range of situations, rather than the current focus on the African ones. Also, if the genuine link requirement is to be interpreted in the context of protection and responsibility, the question must be asked as to why it took Comoros three years to make the actual referral. With respect to the comment above (hostage) I do not believe that the authors neglected the issue of impunity; rather the political ramifications must be considered too in order to ensure the ICC’s credibility. 

  7. Re: the question must be asked as to why it took Comoros three years to make the actual referral.
    How about the fact that Wikileaks revealed Israel had advised the US government that it considered the Palestinian ICC referral “an act of war” and wanted hekp getting it quashed or withdrawn?
    We are talking about a state actor that has either attacked or invaded all of its neighbours repeatedly in pre-emptive wars and carried out bombing missions against states as far away as Iraq and Tunisia. There isn’t a day that goes by that Israel doesn’t threaten to bomb Iran, Syria, or some other country without any noticeable political or legal ramifications.The Rome Statute obviously doesn’t provide victim states with any protections.
    The former Prosecutor spent 3 years sandbagging the Palestinian referral and gethering opinions from everyone but the Secretary General. The Prosecutor completely ignored the contents of the VCLT, the multilateral treaty accessions already deposited by Palestine and accepted by the Secretary General in 2003 and 2004, and the treaty exhibit supplied to the Prosecutor’s office by the Arab League of States. Much of that evidence showed that Palestine was a State capable of concluding treaties before the Rome Statute ever entered into effect. The text of the General Assembly resolution cited the 1988 UDI, acknowledged that the PLO Executive has acted as the provisional government of the State of Palestine ever since, and cited full membership in a number of international organizations that also pre-dated the entry into force of the Rome Statute. Ignoring all of that clear evidence of state practice doesn’t lend the Court any credibility at all. 
    Nigel the authors said that “formally, de lege lata, the vessel remains a Comoros vessel and thus part of its territory”. They claim that the upshot of their discussion is that the law might allow the flexibility for both Turkey and Comoros to make referrals. There’s no jurisdictional bar based upon statelessness, since they are arguing over disputed material facts that aren’t even part of the Court record yet. 
    The referral filed by Comoros was NOT limited to the Mavi Marmara or to crimes committed only against citizens of Turkey. Comoros cited situations on vessels taking part in the flotilla that were flagged by two other State Parties to the Rome Statute, See ICC-01/13 The Situation on Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia
    I also noted that the Spanish Courts were asked to refer cases involving citizens of Spain in that same connection. The passengers and crews have alleged that crimes subject to ICC jurisdiction were committed on all the vessels in the flotilla. 
    The Palmer Inquiry had no investigative mandate and gathered no independent evidence or testimony. It took directions from two member states who delayed publication and insisted that compromises be made over its conclusions. Subsidiary organs created by the Secretariat aren’t even supposed to engage in that sort of political activity under the terms of Article 100(1) of the UN Charter.
    The US ambassador to the UN at the time was quoted in the press as saying that the purpose of the Palmer Inquiry was conciliation and to make the UN HRC investigation “go away”. In any event, the responsible treaty monitoring bodies have long-since declared the blockade to be a form of illegal collective punishment. Under the norms of international law such a blockade may be considered a constituent act aggression, but it is certainly not one of the grounds mentioned in Article 31 for excluding criminal responsibility.

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