The Most Distressing Paragraph in the Comoros Review Decision

by Kevin Jon Heller

No matter how many times I read the decision, I keep coming back to this paragraph:

51. As a final note, the Chamber cannot overlook the discrepancy between, on the one hand, the Prosecutor’s conclusion that the identified crimes were so evidently not grave enough to justify action by the Court, of which the raison d’être is to investigate and prosecute international crimes of concern to the international community, and, on the other hand, the attention and concern that these events attracted from the parties involved, also leading to several fact-finding efforts on behalf of States and the United Nations in order to shed light on the events. The Chamber is confident that, when reconsidering her decision, the Prosecutor will fully uphold her mandate under the Statute.

The Pre-Trial Chamber’s comment is mere dicta. But oy gevalt is it dangerous dicta — a dream come true for the ICC’s critics, who have always insisted that the Court’s work will be driven by politics, not law. The paragraph does indeed seem to suggest that the gravity of particular crimes is a function, at least in part, of how much attention the international community pays to them. Such a consideration not only makes a mockery of the Court’s independence, it defies common sense: just as crimes the world obsesses over might be insufficiently grave to warrant investigation, crimes the world ignores could be more than grave enough. You don’t have to be an Israel apologist to see that.

I share the PTC’s confidence the Prosecutor will indeed fully uphold her mandate. And that means she will assess the IDF’s crimes on the Mavi Marmara without regard to what the international community thinks about them.

http://opiniojuris.org/2015/07/19/the-most-distressing-paragraph-in-the-comoros-review-decision/

23 Responses

  1. Kevin,

    This decision would seem to be less about law and justice and more of a stepping stone for the PTC not just to override prosecutorial discretion, but also to make the ICC a more relevant institution with more work on its agenda. It becomes a “self-licking ice cream cone” issue, doesn’t it? Just as some would claim the work of the ad hoc tribunals has been delayed and extended to maintain the employment of its staff and judges, this decision appears to be an attempt by the PTC to broaden the work of the ICC so as to justify its continued funding and existence.

    Just a thought…

    John

  2. Nah don’t worry John.

    This is a special Jew rule. Not even for Israelis – no Israeli Moslem will ever be investigated. This rule was never applied anywhere else and it never will be applied anywhere else.

    The bigotry and systemic racism of the International Community is too deeply embedded. So if you are not Jewish, no need to worry.

    #JewishLivesDontMatter

  3. Response…This is a special Jew rule. … #JewishLivesDontMatter

    According to reliable reports, the IDF showed precious little regard for the Jewish lives of the passengers of the Gaza flotilla, including people like Holocaust and Mavi Marmara survivor Hedy Epstein. She only wanted governments to treat Israel exactly like every other state and for Israel to grant Palestinians the same rights it grants to the Jewish people.

  4. Look. I’m just a country lawyer, so be patient.

    The ICC prosecutes individuals, not States. Right?

    So the PTC wants the Prosecutors Office to consider indicting Netanyahu, or the Israeli Defense Minister, or some lowly Brigadier, for ordering IDF commandos to shoot paint balls at activists who were breaking a legal(Palmer Commission) blockade?

  5. Re: So the PTC wants the Prosecutors Office to consider indicting Netanyahu, or the Israeli Defense Minister, or some lowly Brigadier, for ordering IDF commandos to shoot paint balls at activists who were breaking a legal(Palmer Commission) blockade?

    The Palmer Inquiry was the result of the sort of political outcry from the international community that Kevin is talking about. It never was a proper legal undertaking and it failed in its political goal of achieving conciliation between Turkey and Israel.

    The continuing legality of blockades as a tool of modern statecraft is a subject of considerable debate. In 1967, Israeli Prime Minister Eshkol listed “the policy of strangling encirclement” and “The illegal blockade in the Straits of Tiran and the insolent defiance of the international and maritime community” as his justification for going to war.

    There were individuals from fewer than 30 countries represented in the work on the San Remo Manual and several of the participants expressed the opinion that blockades were no longer legal as a result of developments in IHL. When the General Assembly was codifying the definition of aggression, 50 countries representing all the major regional systems of international law participated in the working group. They included blockades in the list of acts of aggression that violate the UN Charter Article 2(4) prohibition of threats or force against the territory of another state.

    Palmer and his commission said that they had relied upon the San Remo Manual in identifying the rules. But they could not have determined if the blockade was legal according to those, since the members never went to Gaza to determine if the damage to the civilian population as a result of the blockade was excessive. So far as I can tell, the only evidence he gathered was hearsay obtained through diplomatic channels from Israel or Turkey.

    FYI, Palmer’s findings were contradicted by UN officials, independent experts on mission for the UN in Gaza, and the UNRWA and ICRC officials tasked with oversight of daily relief operations. They uniformly agreed that the blockade had created a humanitarian disaster and amounted to collective punishment. At the same time the British Medical Journal, The Lancet, reported that between 10 to 30 percent of the population in various pockets within the Gaza Strip were suffering from malnutrition as a result of the blockade, i.e. children with stunted growth, mental impairment, permanent learning disabilities and other organ damage that could eventually lead to premature death.

    The officials on mission who filed detailed reports on the situation in Gaza included expert jurists like Navi Pillay and Richard Goldstone. Goldstone observed that “a series of acts that deprive Palestinians in the Gaza Strip of their means of sustenance, employment, housing and water, that deny their freedom of movement and their right to leave and enter their own country, that limit their access to courts of law and effective remedies could amount to persecution, a crime against humanity.”

    The report of the Palmer Commission and the two Turkel Commission reports were political exercises, not legal inquiries or fact finding investigations “conforming to international standards.”See the text of the Palmer report itself in that regard and H.C.J. 4641/10, Uri Avneri et al. v. The Prime Minister et al.

    The Secretary General’s Palmer Commission was operating under a cloud from the get-go, since it’s mandate didn’t allow it to collect its own evidence or hear testimony from eyewitnesses. It also took instructions from the two member states concerned regarding the conclusions of the report in violation of the principles contained in Article 100 of the UN Charter.

    Neither of the commissions was empowered to collect or cross examine testimony from the IDF members involved in the raid; the victims on board the ships; or the victims of the blockade in Gaza. FYI, the US had arranged for the Palmer report in order to make the formal reports from the international mandate holders, i.e. the UN OHCHR and UN HRC, “disappear”. Anne Bayefsky spilled the beans about the behind the barn deal that led to its creation because she thought the Obama administration hadn’t kept-up its end of the bargain:

    “August 2, Ban launched his investigation, which got off the ground only because the U.S. pressed Israel to agree, and Israel took American assurances seriously. U.S. ambassador to the UN Susan Rice spelled some of them out: “The United States expects that the Panel will…obviate the need for any overlapping international inquiries.” The overlapping inquiry of the Human Rights Council, she claimed, would go away.

    Haaretz added that the Israeli government believed it had received assurances that “the review panel will not have the authority to subpoena witnesses, including Israel Defense Forces soldiers and officers.” — ” — Anne Bayefsky, Weekly Standard, “Questions Arise About the UN Investigation into Israel’s Action Regarding Flotilla,” Aug 6, 2010.

  6. 1. Taken out of context, this paragraph gives a very skewed idea of the reasoning behind the Chamber’s conclusion. In fact, it almost has nothing to do with it.

    2. The “gravity” requirement does not come with an exact mathematical formula of rigid criteria that can instruct a determination on this matter. I can’t see a reason why the e.g. “outcry of the international community” cannot be *one* variable that may be considered when determining the gravity of a crime. Have we not, from Nuremberg till present day, consistently stressed this effect of acts that “shock the conscience of mankind” and other such phraseology to justify international prosecutions? If the gravity of the 9/11 attacks was ever to be assessed, I doubt the emphasis would fall exclusively on the number of victims, the severity of the underlying crimes etc.

  7. @Hostage

    Hamas is a belligerent. The conflict is an IAC.
    The blockade is legal.

    The Palmer Court relies on the Prizes Case.
    You have a problem with old Supreme Court cases too?

  8. @Hostage: Regarding this:

    “FYI, Palmer’s findings were contradicted by UN officials, independent experts on mission for the UN in Gaza, and the UNRWA and ICRC officials tasked with oversight of daily relief operations. They uniformly agreed that the blockade had created a humanitarian disaster and amounted to collective punishment. At the same time the British Medical Journal, The Lancet, reported that between 10 to 30 percent of the population in various pockets within the Gaza Strip were suffering from malnutrition as a result of the blockade, i.e. children with stunted growth, mental impairment, permanent learning disabilities and other organ damage that could eventually lead to premature death.”

    I am actually curious, what’s their hard evidence that the blockade has caused any of this? A few years ago, Haaretz reported that the IDF determined that it had to allow into the Strip at least 2279 calories per habitant worth of food (see: http://www.haaretz.com/news/diplomacy-defense/2-279-calories-per-person-how-israel-made-sure-gaza-didn-t-starve.premium-1.470419 ) which would seemingly be higher than the average consumption before the blockade started in 2007: https://en.m.wikipedia.org/wiki/List_of_countries_by_food_energy_intake

    Surely a mere opinion by humanitarian NGOs – which in any event have a clear and strong incentive to say a humanitarian disaster is actually going on as means to justify their existence – is not enough hard evidence for launching a probe in the ICC in this case, right?

    “The officials on mission who filed detailed reports on the situation in Gaza included expert jurists like Navi Pillay and Richard Goldstone. Goldstone observed that “a series of acts that deprive Palestinians in the Gaza Strip of their means of sustenance, employment, housing and water, that deny their freedom of movement and their right to leave and enter their own country, that limit their access to courts of law and effective remedies could amount to persecution, a crime against humanity.””

    Most, if not all, of the issues mentioned there are seemingly inherent to blockades. If blockades are not necessarily illegal, then why mention it? Furthermore, I also don’t know of any international custom or laws suggesting blockades are necessarily and always illegal. After all, attacks occurring within a populated territory of a sufficient scale and that abide by the principles of distinction, proportionality and necessity would pausibly impair the provision of employment, housing, food and water, administration of justice and other usual services provided by the State.

    And of course, wouldn’t this also mean that Egyptian leaders in particular should be facing prosecution at the ICC as well? If the blockade is deemed illegal, why wouldn’t this be the case and, if so, will the ICC follow this road?

  9. Re: Hamas is a belligerent. The conflict is an IAC.

    When Naser imposed the blockade on the Straits of Tiran, Israel had already been condemned for launching an invasion of the West Bank of Jordan to raid Es Sammu and for shooting down Syrian MiGs flying over downtown Damascus. Nonetheless Eshkol said the blockade was illegal and reflected an insolent defiance of the international and maritime community. How is the blockade of Gaza any different than “the policy of strangling encirclement” that Eshkol complained about, especially after the UN Security Council has called for “unimpeded” flow of relief consignments into Gaza?

    Re: The Palmer Court relies on the Prizes Case.
    You have a problem with old Supreme Court cases too?

    Yes, I have a problem with anyone who blithely cites the mid-19th century laws of warfare from an old US Supreme Court Decision as if they constitute a 21st Century Bill of Rights. Even the Supreme Court has overturned old cases from that era and that same panel of Justices (e.g. Dred Scott v Sanford). I doubt that Palmer could even cite Gregg v Georgia (1976) in few years time without being roundly condemned, even here in the USA.

    In any event, by 1920 the Martens Clause had been ratified by the US government and it was cited by the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties when it listed “Destruction of fishing boats and of relief ships” as a crime. Since the era of the Prize Cases, the UN Charter and the UN Definition of Aggression have codified the prohibition of the use of force to violate the political independence or territorial integrity of any state. The Mitchell Report correctly noted that in accordance with resolution 242 Israel has to withdraw its armed forces from all of the occupied territories, before it can expect the Palestinians to end their state of belligerency.

    FYI, the US State Department lists several codifications of international law, beside the Hague and Geneva conventions that have entered into force since the Prize Cases: “The General Treaty for Renunciation of War as an Instrument of National Policy”; “The Montevideo Convention on the Rights and Duties of States”; and “The Charter of the Organization of American States”.

  10. Re: Most, if not all, of the issues mentioned there are seemingly inherent to blockades. If blockades are not necessarily illegal, then why mention it?

    Because wilfully causing great suffering or serious injury to body or health of the civilian population is a crime for which no High Contracting Party can simply exonerate itself. The Comoros Referral cited a portion of the UNHRC Flotilla report, which in-turn quoted the ICRC Commentary on Article 102 of the San Remo Manual. It explains that blockades are not inherently legal. They are subject to a customary prohibition against the use of starvation of a civilian population as a mode of warfare that dates back at least to the Report of the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties (1920). That report also listed the imposition of collective penalties as a crime. Those customary rules were reflected in Article 33 of the 4th Geneva Convention (1949) and Articles 54 and 75 of the 1st Additional Protocol (1977). It’s important to note that subsequent to the publication of the Palmer Commission report, the Secretary General himself has authored his own report which described the blockade as: as “a continuing collective penalty against the population in Gaza” (A/HRC/28/45, para. 70).

    Re: A few years ago, Haaretz reported that the IDF determined that it had to allow into the Strip at least 2279 calories per habitant worth of food which would seemingly be higher than the average consumption before the blockade started in 2007.

    You are comparing one hypothetical figure to another hypothetical figure. FYI before the blockade started in 2007, the Secretary General had already supplied the ICJ with a 1000 page dossier that said Israel had created isolated ethnic enclaves, including the Gaza Strip and had built fences, walls, forbidden zones, and imposed an illegal associated administrative regime that cut tens of thousands of people off from sources of water and food they depended upon for their survival. The Secretary reported that thousands of people were going hungry, while their unharvested crops were whithering in the fields. Palestine’s written submission to the Court outlined those conditions of life and accused Israel of committing apartheid and other crimes against humanity. The ICJ’s findings included several constituent acts in that connection that are subject to the jurisdiction of the ICC and noted that several interested states had argued that Israel was under an obligation to prosecute or extradite the responsible officials. For a time Israel relaxed its restrictions. In 2007, it began imposing much more draconian ones than the regime the ICJ had held to be illegal in 2004. The Goldstone report incorporated many of those ICJ findings in the form of references and footnotes that were intended to be reviewed by the ICC Prosecutor.

    Re: Surely a mere opinion by humanitarian NGOs – which in any event have a clear and strong incentive to say a humanitarian disaster is actually going on as means to justify their existence – is not enough hard evidence for launching a probe in the ICC in this case, right?

    The ICRC and UNRWA are NOT NGOs. The ICRC is the official treaty monitoring watchdog for the applicable IHL conventions. The UNRWA is the UN agency with primary responsibility for providing humanitarian and economic assistance within Gaza.

    Re: And of course, wouldn’t this also mean that Egyptian leaders in particular should be facing prosecution at the ICC as well?

    If they are part of the illegal situation that Comoros or Palestine have referred to the Court, then the Prosecutor should follow the facts and evidence where they lead, and indict those who are responsible. A tu quoque argument would not preclude investigation or prosecution of Israeli officials.

  11. “Because wilfully causing great suffering or serious injury to body or health of the civilian population is a crime for which no High Contracting Party can simply exonerate itself. The Comoros Referral cited a portion of the UNHRC Flotilla report, which in-turn quoted the ICRC Commentary on Article 102 of the San Remo Manual. It explains that blockades are not inherently legal. They are subject to a customary prohibition against the use of starvation of a civilian population as a mode of warfare that dates back at least to the Report of the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties (1920). That report also listed the imposition of collective penalties as a crime. Those customary rules were reflected in Article 33 of the 4th Geneva Convention (1949) and Articles 54 and 75 of the 1st Additional Protocol (1977). It’s important to note that subsequent to the publication of the Palmer Commission report, the Secretary General himself has authored his own report which described the blockade as: as “a continuing collective penalty against the population in Gaza” (A/HRC/28/45, para. 70).”

    Is this a goal of the blockade?

    “You are comparing one hypothetical figure to another hypothetical figure.”

    The pre-2007 figure comes from the FAO if you follow the reference in the Wikipedia article. The post-2007 goal is a formal declaration by the IDF in the context of a request by Israeli Courts.

    “FYI before the blockade started in 2007, the Secretary General had already supplied the ICJ with a 1000 page dossier that said Israel had created isolated ethnic enclaves, including the Gaza Strip and had built fences, walls, forbidden zones, and imposed an illegal associated administrative regime that cut tens of thousands of people off from sources of water and food they depended upon for their survival. The Secretary reported that thousands of people were going hungry, while their unharvested crops were whithering in the fields. Palestine’s written submission to the Court outlined those conditions of life and accused Israel of committing apartheid and other crimes against humanity. The ICJ’s findings included several constituent acts in that connection that are subject to the jurisdiction of the ICC and noted that several interested states had argued that Israel was under an obligation to prosecute or extradite the responsible officials. For a time Israel relaxed its restrictions. In 2007, it began imposing much more draconian ones than the regime the ICJ had held to be illegal in 2004. The Goldstone report incorporated many of those ICJ findings in the form of references and footnotes that were intended to be reviewed by the ICC Prosecutor.”

    And yet the restrictions from the ICJ ruling refer to a period in which there were Israeli settlements in Gaza, settlements that were removed in 2005 and with their removal those restrictions ended since they had been set up to protect the said settlements. I wonder why would anyone refer to the pre-disengagement situation in Gaza when the situation with regards to the settlements has clearly changed and when IHL rests on the facts on the ground at the period of analysis considered – like a decade ago, you know.

    Furthermore, if you look at the Wiki reference you’ll see that the calorie target set by Israel is above the minimum caloric requirement set up by the FAO – and if you don’t trust it, you can always see here: http://www.fao.org/fileadmin/templates/ess/documents/food_security_statistics/MinimumDietaryEnergyRequirement_en.xls

    Since, according to the FAO itself, the average calorie availability for the OPT is above this minimum requirement estimated by the FAO for 2005-2007, I would say it is fair to actually wonder what’s the basis to claim that Israel is the cause for Gazan malnutrition.

    “The ICRC and UNRWA are NOT NGOs. The ICRC is the official treaty monitoring watchdog for the applicable IHL conventions. The UNRWA is the UN agency with primary responsibility for providing humanitarian and economic assistance within Gaza.”

    In both cases, the argument still applies – both owe their existence to precisely warning about humanitarian crises. Just like someone above suggested that the ICC needs cases to justify funding, the ICRC and the UNRWA (especially the latter) need this conflict to have a reason to exist, and receive funding. But even if they didn’t, they still have to defend the claim that the Israeli blockade is causing malnourishment in Gaza, as opposed (for example) of how the UNRWA and the government of Gaza manage the supplies allowed into the Strip by Israel. Unless the IDF lied to the Israeli judicial system with regards to its daily calorie target for Gaza (which is possible), there is a contradiction with regards to what the facts of the situation are here – and if the facts aren’t clear, how can you assign responsibilities for the current state of affairs in Gaza?

    I would assume that if the ICC prosecutor launched a formal probe against Israeli officials, and it went into a formal trial phase, the Israeli defense may mention this among its arguments.

    “If they are part of the illegal situation that Comoros or Palestine have referred to the Court, then the Prosecutor should follow the facts and evidence where they lead, and indict those who are responsible. A tu quoque argument would not preclude investigation or prosecution of Israeli officials.”

    It would if the ICC is concerned about the potential fallout from attempting to try senior Egyptian officials. It’s simple, unless one believes Egypt doesn’t have a responsibility for the Gaza blockade (which is a claim that’s very, very hard to defend), prosecuting Israeli officials over the situation in Gaza will necessarily extend the inquiry to Egyptian officials as well. It’d be interesting to watch, but does anyone believe the ICC would try to?

    At last but not least, I just read on Jerusalem Post that the true judges who voted for asking the Prosecutor to launch an investigation on this issue didn’t have any significant prior experience on international law. Is this true? It’d be quite damaging for the ICC if it were. I’m skeptical on this claim, but judging by KJH’s reaction I don’t know what to believe.

  12. Re: The Pre-Trial Chamber’s comment is mere dicta. But oy gevalt is it dangerous dicta — a dream come true for the ICC’s critics, who have always insisted that the Court’s work will be driven by politics, not law.

    I tend to agree that the Prosecutor should enjoy a great degree of independence and never be beholden to a lynch mob mentality. On the other hand, politics and the law are inseparable. The only qualifications necessary to become a lawmaker in most countries is the ability to get yourself elected by a popular vote. It is the “international community of states as a whole,” and not the Courts, that the Vienna Convention on the Law of Treaties assigned the responsibility for determining what constitutes a jus cogens norm. States have constantly reaffirmed the fact that “the laws of humanity and the requirements of the public conscience” are an integral part of IHL.

    The Rome Statute, like any other treaty, has to be interpreted in accordance with the rules reflected in the Law of Treaties. Ultimately, Articles 21 and 46 of the Rome Statute are an agreement between states which implies that a Prosecutor or Judge can be removed from office under the Court’s Rules of Procedure as a result of action initiated, either by themselves or some independent oversight mechanism created by the Court.

  13. Kevin,
    Didn’t you argue for “social alarm” to be considered in determining situational gravity?

  14. Re: Is this a goal of the blockade?

    It doesn’t matter if it’s a goal. According to the guidance in Article 102(b) of the San Remo Manual a blockade becomes illegal if its effects on the civilian population become excessive. Once the UN Human Rights and ICRC IHL treaty monitoring bodies determine that it has, and put you on formal notice, then you risk crossing a red line by continuing to wilfully cause great suffering or serious injury to body or health of the civilian population.

    Re: Since, according to the FAO itself, the average calorie availability for the OPT is above this minimum requirement estimated by the FAO for 2005-2007, I would say it is fair to actually wonder what’s the basis to claim that Israel is the cause for Gazan malnutrition.

    Nice try, but the FAO never endorsed the IDF’s calculations on the number of trucks needed daily to supply sustenance to the population. In fact, here is what it reported in 2009: “As the cost of fresh food rises, Gazans are facing an acute shortage of nutritious, locally-produced and affordable food, relying instead on emergency aid distributions. Animal protein is generally unavailable following damage to the sector and FAO is expecting to witness widespread wasting and micronutrient deficiencies. In addition, the farmers and fishers whose assets have been damaged face an irreversible loss of their livelihoods, placing the already weak Gazan economy at risk of collapse.”

    Re: And yet the restrictions from the ICJ ruling refer to a period in which there were Israeli settlements in Gaza, settlements that were removed in 2005 and with their removal those restrictions ended since they had been set up to protect the said settlements.

    Once you’ve wilfully caused children to have stunted growth and permanent disabilities, then we are discussing a crime for which statutory limitations no longer apply.

    Re: In both cases, the argument still applies – both owe their existence to precisely warning about humanitarian crises.

    No, that’s one of their official roles. In the case of the expert panels of the UN Human Rights treaty monitoring bodies, they owe their existence to the contracting state parties, who authored the relevant conventions and conduct the elections employed to select them. Likewise, the officials on mission for the UN are operating under legal mandates created by the organs of the UN in accordance with specific powers and functions delegated to them by each UN member state under the terms of the UN Charter itself. The ICRC’s IHL watchdog function was formally assigned to it by the international community of states in the Statutes of the International Red Cross and Red Crescent Movement.

  15. “It doesn’t matter if it’s a goal. According to the guidance in Article 102(b) of the San Remo Manual a blockade becomes illegal if its effects on the civilian population become excessive. Once the UN Human Rights and ICRC IHL treaty monitoring bodies determine that it has, and put you on formal notice, then you risk crossing a red line by continuing to wilfully cause great suffering or serious injury to body or health of the civilian population.”

    Indeed, excessive relative to the military advantage gained by enforcing it. Is the military advantage worth it?

    And don’t come up with the “It is because the ICRC says so” line. I have yet to see their justification for saying so to begin with – but maybe you could enlighten me? I hope it is not based on NGO reports but is based on a combination of a thorough analysis of available statistics of health outcomes among the Gazan population, the effects of Israeli restrictions and just as importantly a comparison of the effects of those with the military advantage gained by Israel by imposing those restrictions. The latter, in particular, seems to be lacking to me even though it is a key provision of IHL. Why?

    “Nice try, but the FAO never endorsed the IDF’s calculations on the number of trucks needed daily to supply sustenance to the population. In fact, here is what it reported in 2009: “As the cost of fresh food rises, Gazans are facing an acute shortage of nutritious, locally-produced and affordable food, relying instead on emergency aid distributions. Animal protein is generally unavailable following damage to the sector and FAO is expecting to witness widespread wasting and micronutrient deficiencies. In addition, the farmers and fishers whose assets have been damaged face an irreversible loss of their livelihoods, placing the already weak Gazan economy at risk of collapse.””

    Certainly the domestic producers were going to be affected by the Israeli-Egyptian blockade, though as the FAO itself says the Gazan population would end up depending on humanitarian aid. What I don’t read on that paragraph, which will hopefully be appropriately sourced, is that it says that humanitarian aid allowed by Israel into the Strip has effectively lead to a deficient provision of food, be it locally produced or given as aid.

    I’m against confusing the evident economic damage of the blockade for Gazan producers, which is evident, and whether Israel and Egypt have honored their obligations to provide adequate aid as a means to deal with the former – which is the most basic and evident humanitarian obligation they have.

    “Once you’ve wilfully caused children to have stunted growth and permanent disabilities, then we are discussing a crime for which statutory limitations no longer apply.”

    But you haven’t proven Israel has done so. In particular, you haven’t shown a causal link between “Israeli-Egyptian blockade” and “stunted growth and disabilities among Gazan children”, and whether the inadequate provision of food for them starts outside of Gaza (by having Israel and Egypt refuse to allow enough aid in) or occurs due to some other reason (for instance due to an inadequate distribution of the said aid by the UNRWA or Gazan authorities as Israel alleges).

    “No, that’s one of their official roles. In the case of the expert panels of the UN Human Rights treaty monitoring bodies, they owe their existence to the contracting state parties, who authored the relevant conventions and conduct the elections employed to select them. Likewise, the officials on mission for the UN are operating under legal mandates created by the organs of the UN in accordance with specific powers and functions delegated to them by each UN member state under the terms of the UN Charter itself. The ICRC’s IHL watchdog function was formally assigned to it by the international community of states in the Statutes of the International Red Cross and Red Crescent Movement.”

    Correct, and the funding that goes with it decreases if there are less hostilities between Israelis and Gazans. I don’t see how or why is this controversial, and why would it be controversial that it harms those who work for those organizations as well. Even more so since UNRWA in particular is known to be facing a financial crisis.

  16. Re: Indeed, excessive relative to the military advantage gained by enforcing it. Is the military advantage worth it?

    The security fence, that Israel began constructing around Gaza in the 1990s, and the blockade and frequent incursions since the so-called disengagement, were a failure by every metric as of the date of the attack on the flotilla. They had only increased the number of rockets and mortars fired into Israel. They were certainly not the only measures that could have been employed. For example, even the US quarantine of Cuba allowed ships that were not carrying prohibited items to continue on their way to the coasts of Cuba after they were visited and inspected. That is what Article 103 of the San Remo Manual requires. The UN Security Council recently issued a unanimous statement stressing that ships carrying food, fuel and other vital supplies must be permitted to enter ports in Yemen, despite the Saudi blockade, because the country is on the brink of famine.

    As the ICJ noted, Israel could not rely on a right of self-defense or on a state of necessity in order to preclude the wrongfulness of all of its actions as of 2004. Several High Contracting Parties felt that a sufficient prima facie case had already been made out and that Israel was required to either bring those responsible before its own Courts or to extradite them in accordance with Articles 146 through 148 of the 4th Geneva Convention.

    Re: And don’t come up with the “It is because the ICRC says so” line. I have yet to see their justification for saying so to begin with – but maybe you could enlighten me?

    Well once again, the legal experts of the UN and ICRC treaty monitoring bodies and the UNRWA health services professionals in Gaza only have to make a prima facie case of a grave breach in order to trigger the obligation to prosecute or extradite among the High Contracting Parties according to the terms of Article 146-148 of GCIV. I don’t think that the various authors of the Lancet article that corroborates their findings depend upon a humanitarian crisis in Gaza for their funding.

    In this case, we are only talking about initiating an ICC investigation. As the Judges of the Pre-Trial Chamber pointed out, “it is precisely the purpose of an investigation to provide clarity. Making the commencement of an investigation contingent on the information available at the pre-investigative stage being already clear, univocal or not contradictory creates a short circuit and deprives the exercise of any purpose.”

  17. “The security fence, that Israel began constructing around Gaza in the 1990s, and the blockade and frequent incursions since the so-called disengagement, were a failure by every metric as of the date of the attack on the flotilla. They had only increased the number of rockets and mortars fired into Israel. ”

    But the fence – which IIRC follows the internationally recognized Israel-Gaza border – wasn’t built to stop rockets into Israel, it was built to stop people going into Israel with no authorization. And it is fair to say that it was successful at doing that though Hamas has come with the corresponding counter-measure (tunnels).

    As for the military operations launched by Israel into Gazan territory, I would say that they have achieved a significant, though temporary, decrease in rocket attacks. I recall that, for instance, rocket and mortar fire from Gaza decreased significantly after Operation Cast Lead (relative to the launches in the year before) and started to pick up after the 2011 Egyptian revolution that overthrew Mubarak and which saw the Muslim Brotherhood gaining strength, and eventually power, within Egypt.

    But no, they most certainly haven’t ended rocket fire. But then, only a durable agreement or reoccupation of Gaza can.

    “For example, even the US quarantine of Cuba allowed ships that were not carrying prohibited items to continue on their way to the coasts of Cuba after they were visited and inspected. That is what Article 103 of the San Remo Manual requires. The UN Security Council recently issued a unanimous statement stressing that ships carrying food, fuel and other vital supplies must be permitted to enter ports in Yemen, despite the Saudi blockade, because the country is on the brink of famine.”

    Absolutely, but it is also true that the same Manual says the State which declared the blockade may decide how these supplies are delivered to the population on the same article. Israel prefers such delivery to be carried out by ground, which I don’t see how is illegal under the Manual at least. The issue is whether Israel has provided enough supplies of the basic items numbered in the Manual (food, medical supplies and other items essential for the survival of the Gazan population), and whether the negative effects of the blockade on the Gazan population arising directly from the Israeli and Egyptian blockade outweigh the military advantage afforded to them by the said blockade.

    “As the ICJ noted, Israel could not rely on a right of self-defense or on a state of necessity in order to preclude the wrongfulness of all of its actions as of 2004. Several High Contracting Parties felt that a sufficient prima facie case had already been made out and that Israel was required to either bring those responsible before its own Courts or to extradite them in accordance with Articles 146 through 148 of the 4th Geneva Convention.”

    Correct, though as I said the situation in Gaza fundamentally changed since the advisory opinion was issued. I also recall that much of it had to do with, umm, well the barrier/fence/wall built in the West Bank, and most importantly that the route chosen didn’t seem to be justified by military necessity.

    “Well once again, the legal experts of the UN and ICRC treaty monitoring bodies and the UNRWA health services professionals in Gaza only have to make a prima facie case of a grave breach in order to trigger the obligation to prosecute or extradite among the High Contracting Parties according to the terms of Article 146-148 of GCIV. I don’t think that the various authors of the Lancet article that corroborates their findings depend upon a humanitarian crisis in Gaza for their funding.”

    The authors of the Lancet don’t, but did they defend a casual link of the Israeli blockade and malnourishment in Gaza? Did they analyze how much food, and which foods, are allowed into Gaza by Israel and whether it allows the population to avoid malnourishment?

    I can’t help to note that you didn’t mention, too, that the ICRC uses military experts to carry the legal analysis out. I, at least, think it is impossible to do so without their help and I would assume that they take part in the crafting of their reports – but if they are, then one would expect an analysis from a military perspective of the advantage gained by Israel and Egypt from the blockade. Unfortunately, I don’t recall any from the reports on Israeli policies.

    “In this case, we are only talking about initiating an ICC investigation. As the Judges of the Pre-Trial Chamber pointed out, “it is precisely the purpose of an investigation to provide clarity. Making the commencement of an investigation contingent on the information available at the pre-investigative stage being already clear, univocal or not contradictory creates a short circuit and deprives the exercise of any purpose.””

    Oh, I agree. But I tend to side with Kevin if it’s going to be narrowly focused on the Marmara incident or even on the blockade. If it comes to be, it should be over the situation in Gaza (at least), if not the situation in Israel and Palestine in general. And I also tend to side with him that the opinion of the international community should not be a factor to assess relevance in this case.

  18. Anon,
    Some of your assertions just make me want to throw up.

  19. Which ones would those be, I wonder?

  20. Oh I apologize, I meant all of your assertions make me want to throw up. My bad.

  21. Why would that be?

    Maybe you want to throw up because you have no real way to refute them? That’d be sad considering that the standard of evidence required for criminal prosecution, even under domestic law, is pretty high (and naturally so!).

  22. No no, it’s just the smell of bad faith. That’s all.

  23. Well, if you think that I’m arguing in bad faith, even when I actually think that the overall situation in Israel and Palestine – but not the Marmara affair in specific, which doesn’t even involve most of the civilians affected by the conflict – does meet the threshold for prosecution in international Courts (criminal or not), that’s up to you.

    What I don’t agree with is with taking NGO, UN and ICRC reports as facts when they lack an explicit analysis by military experts of the issues of proportionality, necessity and distinction involved in the incidents mentioned – which is something lawyers alone are not qualified to assess – and especially when the latter two take the former as evidence or, in the case of the UN, when the resolution that motivates the drafting of such reports has already determined what the facts are and issued condemnations before an inquiry has begun (which may legitimately make one wonder how reliable will that inquiry be).

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