Thoughts on the Baffling Comoros Declination

by Kevin Jon Heller

As I read – and re-read – the OTP’s decision regarding the attack on the Mavi Marmara, one thought kept going through my mind: what was the OTP thinking? Why would it produce a 61-page document explaining why, despite finding reason to believe the IDF had committed war crimes during the attack, it was not going to open an investigation? After all, the OTP took barely 10 pages to explain why it was not going to open an investigation into British war crimes in Iraq. And it routinely refuses to open investigations with no explanation at all.

There are, I think, two possible explanations for the length of the decision. The first is that the OTP learned its lesson with its 2006 Iraq decision, which no one found convincing and was widely interpreted as Luis Moreno-Ocampo succumbing to Western pressure. This time, the OTP was going to do better, providing a much more detailed discussion of its decision not to investigate.

The second possible explanation is that the OTP felt the need to say more than usual because this was the first time a state had referred crimes committed by another state to the OTP. Nothing in the Rome Statute requires the OTP to treat state referrals differently than “referrals” by individuals or organisations (the scare quotes are necessary because individuals and organisations don’t refer situations; they ask the OTP to use its proprio motu power to open an investigation into a situation), but the OTP is, of course, ultimately dependent upon states to cooperate with it. Hence greater solicitude toward state referrals is warranted.

These two explanations are not mutually exclusive, and I imagine both are at least partially correct. But I still can’t help but think that the OTP made a serious mistake, one that will come back to haunt it in the future, should it ever need to formally address the Israel/Palestine conflict again — which seems likely.

To be clear, I don’t think refusing to investigate the attack on the Mavi Marmara was a mistake. I agree with the OTP that the potential crimes committed during the attack, however troubling, are not grave enough to warrant a formal investigation. My problem is with the OTP’s explanation of why those crimes are not adequately grave – that attacks on peacekeepers (in Darfur) are more serious than an attack on civilians engaged trying to break a blockade that has been widely condemned as illegal because of its devastating consequences for the inhabitants of Gaza. I fully agree with Michael Kearney’s recent guest-post on the Comoros decision, in which he questions the OTP’s characterisation of the flotilla as not really being humanitarian. I’d simply add that I find problematic its insistence that a genuinely humanitarian mission would have worked with Israel to distribute goods in Gaza instead of trying to break the blockade. Doing so would have meant, of course, giving final say over the goods to a state whose officials have admitted they want to keep Palestinians at near-subsistence levels. Complying with the blockade would simply have made the flotilla complicit in Israel’s ongoing collective punishment of Gaza’s civilian population.

The OTP’s gravity analysis is also analytically confused. Dov Jacobs is absolutely right: it makes no sense to compare the gravity of a situation (the attack on the Mavi Marmara) with the gravity of a particular case (the attack on peacekeepers in Darfur). The attack on peacekeepers was only one case within a much larger situation; the attack on the Mavi Marmara was both the situation and the case. The OTP, therefore, should not have compared the attack on the Mavi Marmara to the attack on the Darfur peacekeepers. Instead, it should simply have said that the Comoros situation was too limited to justify a formal investigation, because it was only one small part of the much larger situation in Palestine and because it involved only crimes committed by Israel. As I’ve said time and again, if the OTP ever does open a formal investigation into the situation in Palestine, it needs to investigate both Israeli and Palestinian crimes equally – and needs to investigate those crimes everywhere they were committed.

I am also baffled why, given that it was declining to open a formal investigation, the OTP thought it was a good idea to conclude that there is reason to believe the IDF committed war crimes during the attack on the Mavi Marmara and that Israel is still occupying Gaza. Doing so seems the worst of all possible worlds: it angers the Palestinians, who naturally wonder why the OTP would refuse to investigate acts that it concedes may well be war crimes; and it angers the Israelis, who naturally wonder why the OTP felt the need to opine on controversial factual and legal issues that were ultimately not relevant to its decision. So why didn’t the OTP simply say that even if it assumed Israel had committed war crimes and that Israel was still occupying Gaza, it did not believe the situation was grave enough to justify a formal investigation? Doing so would have avoided angering the Israelis entirely, and although any decision not to investigate would have angered the Palestinians, it would have at least not teased them with tentative conclusions about war crimes and occupation. It seems the OTP has learned nothing from the controversy over the Iraq declination after all; it was precisely the OTP’s refusal to investigate despite acknowledging the likelihood that British soldiers murdered and tortured innocent civilians that led to the controversy.

And this is an important point: the OTP was in no way obligated to address the occupation of Gaza and the possibility of Israeli war crimes. Nothing in the Rome Statute compels the OTP to analyse whether a referred situation involves potential crimes (Phase 2 of its preliminary-examination analysis) before analysing admissibility (Phase 3); that is simply a policy decision by the OTP. (The requirements for an investigation in Article 53 are not arranged in a hierarchy or a sequence.) The OTP could thus have started with gravity, stating that the situation was not grave enough to formally investigate even assuming all of Comoros’ factual and legal allegations were true. After all, it pointedly refused to address the difficult question of whether Israel’s blockade of Gaza is legal, which makes its willingness to opine about war crimes and the occupation of Gaza even more baffling.

There is no question the Comoros referral put the OTP in a difficult position. No matter what it decided, either Israel or Palestine was going to be angered. My point is simply that the OTP could have — and should have — minimised the inevitable anger. It could have slow-walked the referral into oblivion, which it knows full well how to do; after all, it expects us to believe that it needed seven years to determine that at least one international crime was committed in Afghanistan. It could have dismissed the referral on the basis of gravity, obviating the need to decide whether Israel had committed war crimes. And above all it could have avoided opining on the occupation of Gaza. That last conclusion will no doubt come back to haunt the OTP, assuming (as I do) that it wants to avoid ever investigating the situation in Palestine. After all, the Palestinians now know that the OTP thinks Israel is still occupying Gaza — a critical consideration in their decision whether to ratify the Rome Statute or accept the Court’s jurisdiction on an ad hoc basis.

The OTP is uniquely skilled at making unforced errors. This latest one is a doozy.

6 Responses

  1. Kevin, I’m in agreement almost across the board. Any thoughts on what puzzled me – why no discussion of complementarity, which could be more straight forward than gravity?

  2. Eugene,

    Fair question. I agree that analysing complementarity would have been another (and also better) way to go. But I think the gravity point is so obvious that it was the more logical choice. Complementarity would have involved passing judgment (even if favorable) on Israel’s willingness to investigate and prosecute, which is always sticky. Concluding the Comoros situation was not sufficiently grave — without prejudging whether a larger investigation would be sufficient — would likely minimise anger on both sides.

    PS: I can probably guess what parts of the post you don’t agree with…

  3. There are other possible explanations—some developing your first hypothesis.

    There has been a change in OTP leadership at the ICC. It is possible that there has been a choice to move towards legal ‘formality’ and to attempt to deemphasize politics/PR. I’m not suggesting this is wise, or even possible, but what would a formalist approach look like?

    It would evaluate ‘binary’ jurisdictional matters before polycentric or scalar gravity determinations. It would employ the same methodology for evaluating all referrals (i.e. it would not skip to the ‘easy answers’, even if dispositive). It would then not withhold any of its internal legal analysis. I think there is a likelihood that much more substantial internal research was done in evaluating past situations than appears in the published reports.

    The ICC has an interest in putting up its work that extends beyond demonstrating neutrality and the importance of its function in a particular case (important work, good work). It also has an interest in demonstrating that it is doing *work*, in an era of austerity.

  4. Kevin – I did not mean complementarity re: Israel. An easier path would be Turkey, which as far as I understand it is conducting trials in absentia. I think they’re fairly willing to convict.

  5. Eugene,

    Point taken. But the OTP couldn’t have dismissed on complementarity grounds in that case, because by definition a state is “unable” to genuinely prosecute if it cannot get its hands on the perpetrators. (Which the OTP has acknowledged in the Libyan context.)

  6. Kevin, the question is, do we really know if Turkey is unable? Is it really like Libya, where the gov’t is probably unable to turn on a streetlight, let alone conduct a criminal process?
    That is, shouldn’t we first wait for Turkey to exhaust the resources at their disposal: get convictions, demand extradition, ask for int’l arrest warrants, do a little more? That is to say, it may turn out that they are unable, but at this point easy answer could be “we”re waiting on complementarity, with leave to revisit later.” Have been saying that about Russia/Georgia for years. Interesting why there was greater rush to push this out the door.

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