The Most Distressing Paragraph in the Comoros Review Decision

The Most Distressing Paragraph in the Comoros Review Decision

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.

Topics
Courts & Tribunals, International Criminal Law, International Human Rights Law
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John C. Dehn

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

Jewish Lives Matter
Jewish Lives Matter

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

Hostage
Hostage

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.

Jackdaw
Jackdaw

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?

Hostage
Hostage

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… Read more »

LY
LY

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.

Jackdaw
Jackdaw

@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?

Anon
Anon

@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… Read more »

Hostage
Hostage

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… Read more »

Hostage
Hostage

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… Read more »

Anon
Anon

“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… Read more »

Hostage
Hostage

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… Read more »

Meg
Meg

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

Hostage
Hostage

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… Read more »

Anon
Anon

“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… Read more »

Hostage
Hostage

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… Read more »

Anon
Anon

“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… Read more »

Gary
Gary

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

Anon
Anon

Which ones would those be, I wonder?

Gary
Gary

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

Anon
Anon

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!).

Gary
Gary

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

Anon
Anon

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).