Guest Post: Initial Thoughts on the ICC Prosecutor’s Mavi Marmara Report

[Dr Michael Kearney is Lecturer in Law at the School of Law, Politics and Sociology at the University of Sussex.]

On 6 November 2014 the Office of the Prosecutor at the International Criminal Court released the report of her preliminary investigation into the Israeli army’s attack on a flotilla of ships, which, in 2010, had been sailing towards Palestine with the aim of breaking Israel’s naval blockade of the Gaza Strip. As a result of this investigation the Prosecutor is of the belief that during the interception and takeover of the ship, the Mavi Maramara, in which ten people were killed, Israeli soldiers committed war crimes. The Prosecutor has decided that further action by the Court is not currently feasible on the grounds that the crimes in question are not of sufficient gravity so as to warrant a full investigation. The following thoughts will address issues arising from the Report other than the actual war crimes. (Due to the manner in which the Report is formatted, and specifically the repetition of paragraph numbers, references to excerpts from the Report’s Summary are cited as eg ‘para Z ExecSumm’).

I don’t think this is an unexpected or an unreasonable conclusion from the Office of the Prosecutor with respect the gravity aspect of a preliminary examination. What this statement should encourage however, is the immediate ratification of the Rome Statute by Palestine. The analysis demonstrates how, while distant from any possibility of alleged criminals taking to the dock in The Hague, the International Criminal Court can play a crucial role in considering Israel’s policies and practices against Palestinians through the lens of criminal justice.

Fact-Finding Missions
One aspect of the Report worth noting is the weight attached to the findings of fact-finding missions/ commissions of inquiry into alleged war crimes. The Report draws heavily on the findings of the Turkel Commission which was commissioned by the state of Israel, the Human Rights Council’s fact-finding mission, the Panel of Inquiry established by the UN Secretary-General, and an inquiry established by Turkey. These documents, as well as various media reports, case law, and academic comment provided the sources upon which the OTP drew to reach its conclusions, are described as ‘open and other reliable sources, which the Office has subjected to a fully independent, impartial and thorough analysis.’  (para 4 ExecSumm)

This is useful to bear in mind in light of developments such as the European Journal of International Law’s editorializing that Prof William Schabas should recuse himself from the HRC’s latest commission of inquiry into this summer’s attack on Gaza. As noted by the ICC’s Pre-Trial Chambers in Prosecutor v Ruto et al (Decision on the Confirmation of Charges, para 74) and Prosecutor v Muthaura et al (Decision on the Confirmation of Charges, para 86), the findings of such reports constitute ‘indirect  evidence’ which was described as encompassing ‘hearsay evidence, reports of international and non-governmental organisations (NGOs) as well as reports from national agencies, domestic intelligence services and the media’.

Lord Bingham took a similar approach to the weight to be attached to such reports. When considering, in Jones v Saudi Arabia before the UK’s House of Lords back in 2006, the weight to be attached to periodic reports issued by the Committee Against Torture, he noted that, though not questioning the wisdom of the Committee, it was ‘not an exclusively legal and not an adjudicative body; its power under article 19 is to [merely] make General Comments [and] Whatever its value in influencing the trend of international thinking, the legal authority of its recommendation is slight.’ (para 23).

While indubitably significant, the findings of such fact-finding missions should neither be considered nor equated as being on a par with the function of criminal prosecutors’ gathering evidence for trial nor as being of anything approaching the findings of the judiciary at a criminal trial. Pretty much every state subject to UN sponsored fact-finding missions has dismissed the panels as being biased to one extent or another, most notoriously manifested in Israel’s reaction to Richard Goldstone. Perhaps the time to reflect on what the role and power of such initiatives and their members has yet to come.

Categorisation of Armed Conflict
The statement in the OTP Report that as of May 2010 ‘The hostilities between Israel and Hamas [did] not meet the basic definition of an international armed conflict as a conflict between two or more states’ is in keeping with earlier OTP statements to the effect that Palestine has been a state only since the UN General Assembly by resolution recognized it as such in November 2012.

While I disagree with such a reading of the situation, what is concerning in the immediate instance is that while the Report accepts, correctly, that an international armed conflict exists as a result of Israel’s military occupation of Palestinian territory, at paras 16 (ExecSumm) and again at para 137, the Report refers both to an actually existing ‘Israel-Hamas conflict’ and a possible ‘conflict between Israel and Palestine.’ This would appear to suggest that there are two armed conflicts, the one international resultant from the occupation, and the second, of an as yet undetermined category, but resulting from a conflict between a state and a non-state actor.

That distinct and parallel armed conflicts of different categories may co-exist is well established in the jurisprudence, but is it correct to think that this may be the case with respect Israel’s occupation of Palestine? The main problem which is apparent from such a reading would be the need to demonstrate that any conflict between Israel and Hamas (and following through on the facts one must then also consider distinct conflicts between Israel and Islamic Jihad, Israel and the Popular Front for the Liberation of Palestine, Israel and however many additional non-state armed actors are active in Palestine…) is distinct from, and without any nexus to the international armed conflict arising from the occupation. To conclude that such a nexus was/is absent would plainly fly in the face of the facts. One must assume then that the implication that an Israel versus non-state actor(s) type conflict exists in parallel to the occupation as international armed conflict, is incorrect.

My fear when reading this Report and reflecting on such an analysis, is that the Israeli and broader Western political jargon around hostile entities and unlawful combatants, rooted in the War on Terror narrative, has been unwittingly and inappropriately internalized into the analytical rationalizing of international criminal lawyers.

Limitations on Territorial Jurisdiction
An additional point of extreme concern is the Report’s assertion that ‘(iii) the Court’s territorial jurisdiction does not extend to any events that, while related to the events on board these vessels, occurred after individuals were taken off those vessels.’ (para 143; and similarly at para 25 ExecSumm). No evidence is adduced to support such a claim, which appears to fly in the face of the object and purpose of the applicable law. One can imagine a myriad of contradictions and incongruities that would arise were such a conclusion to be accepted. The Report suggests – actually, it claims – that protected persons in the hands of a party to the conflict which appears to be perpetrating war crimes against them, fall out of the Court’s jurisdiction at the point when the perpetrators transfer them to a different ship.

There’s nowhere to run on the high seas, the same high seas whose very nature inspired the need for a principle of universal jurisdiction apparently all those centuries ago. Suggesting that Israeli soldiers might have avoided coming within the Court’s jurisdiction by first snatching the victims from the Mavi Marmara, then transferring them to an Israeli ship where the crimes of willful killing and so on could be perpetrated is particularly disturbing. Having acknowledged that the victims were protected persons within the jurisdiction of the Court while on the Mavi, to then claim that the Court loses its jurisdiction once they’re transferred requires further critique and hopefully disavowal. To follow such logic would suggest that were Palestine to ratify the Rome Statute, then Palestinians transferred (contrary to the rules of international humanitarian law) from occupied territory to Israeli prisons in Israel could be subject to war crimes such as torture with impunity, since such conduct would be beyond the ICC’s competence or jurisdiction.

Humanitarian Assistance
This is a big one, worthy of a doctorate or two perhaps, but nevertheless deserves flagging. The Report gives substantial consideration to the war crime at Rome article 8.2.b.iii of ‘Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict’.

The OTP notes that while there is no generally accepted definition of what constitutes a humanitarian assistance mission, it must be in accordance with the UN Charter which prohibits ‘in particular any use of force or intervention in internal affairs’ (para 111). Having accepted the conclusions of the HRC fact-finding mission report, and the Israeli Turkel report, each of which stressed that a primary objective of the flotilla was to generate publicity by attempting to breach the blockade, the OTP asserts that the flotilla ‘does not appear to reasonably fall within the humanitarian assistance paradigm envisioned under article 8(2)(b)(iii), due to its apparent lack of neutrality and impartiality as evidenced in the flotilla’s explicit and primary political objectives’ (para 125) and because of its ‘explicit political objectives and apparent primary purpose of challenging the blockade and raising publicity for this cause’. (para 146)

This finding is in all probability in keeping with what the drafters at Rome would have envisaged, so I can’t argue with it as a matter of law (for now anyway). As a point of principle though it does little justice to the activists. Rightly or wrongly, and regardless of effectiveness, publicity is the oxygen of humanitarianism today, and political stunts and Hollywood beauties are standard tools used by most humanitarian organisations. Requiring a form of strict ICRC neutrality is also a tad disingenuous if not downright impossible. The Report returns to this theme in its subsequent comments on Gravity, noting how in the Abu Garda case, the attacks on African Union peacekeepers in Sudan were described by the Office of the Prosecutor as ‘directed against the international community and strike at the very heart of the international legal system [and] the attack had a grave impact on the local population’ (para 145).

It’s one thing to claim that peacekeepers represent the neutral international community, but their mandate in Sudan was approved by the far from representative Security Council in resolution 1564 of 2004. At para 14 the resolution included the threat that unless there was full compliance with its terms then the Security Council would subject Sudan to Chapter VII’s article 41 measures. However noble and necessary the Council’s motivations in that case, they were hardly those of a politically neutral or partial actor, and one must always challenge the notion that what’s said on behalf of the UNSC is the selfsame thing as the voice of the people of the world.

To conclude on this issue, one might bear in mind that in July 2014 the Security Council adopted resolution 2165 giving UN humanitarian agencies and their partners authority to breach Syria’s sovereignty by using border crossings to access that state. The rationale was to permit this violation of sovereignty ‘in order to ensure that humanitarian assistance, including medical and surgical supplies, reaches people in need throughout Syria’. The Security Council, in a distinct yet not unrelated situation of war and crisis then, might have acted under a different power and source of legitimacy than the Flotilla, but it should not be considered as less political, or as being more humanitarian.