Last year the Prosecutor of the International Criminal Court (ICC) declined to open a formal investigation in to the attack on the ‘Gaza Flotilla’. In her decision she made it clear that whilst Israel was almost certainly culpable of having committed war crimes, the allegations did not satisfy the gravity threshold for an international investigation. That decision has been heavily criticised by a number of commentators on both sides of the political divide.
One of the reasons for the criticism is a general lack of understanding on how the ICC operates and in particular, over which situations it has the jurisdiction to open an investigation.
It is clear that there is generally a lack of clarity over the ICC’s complex web of jurisdictional issues and policy considerations. Why is the ICC unwilling to investigate mass atrocities in Syria? Why has it not indicted western leaders for atrocities in Afghanistan and Iraq? Why is it unable to arrest indicted war criminals? And finally, what does the principle of complementarity mean in practice?
These are of course all important questions – questions that cannot be answered in detail here. The failure to confront the obvious crimes committed by the dictatorial regimes in Syria and Egypt and the Islamic State in Iraq, Syria, and Libya and further afield will remain a stain on the reputation of the ICC, but that is not to say that as an institution it serves no purpose. On the contrary it will continue to play a hugely important role in developing international criminal justice and ending impunity but it will take time.
The establishment of the ICC in 2002 was a monumental step in addressing global accountability. Its task is herculean as are the expectations placed upon its narrow (and poorly funded) shoulders. It deserves the international legal community’s support – as opposed to the constant wave of criticism. Yes it could do a better job, that is for sure, but it is only likely to meet expectations with support. Very much like a young child – it will not respond to criticism and chastisement – it will respond to support and encouragement.
The situation in Palestine is one area where the ICC can have a significant impact. Whilst the role of any judicial institution is to apply the law independently and impartially, such institutions have an important role to play in the cessation of hostilities and state building. I have written in the past that justice is a necessary component of the peace process in Palestine, not an obstacle or hindrance. The role that a process of justice and accountability plays is immeasurable. The attack on the Mavi Marmara was a war crimes and the ICC Prosecutor properly termed it as such. The Israeli incursion into Gaza during Operation Protective Edge in which over 2,000 civilians were killed constitutes war crimes.
The expansion of settlements in the occupied territories in East Jerusalem and West Bank constitute war crimes that are clearly part of a state practice. To hold those persons accountable for such crimes is not an attack on the State of Israel. It is not an anti-Semitic practice. It is clear recognition that such conduct will not be tolerated by any nation.
The recent statements by members of the Government of Israel that will continue with its illegal land grabbing are truly disturbing. The statement by the Deputy Foreign Minister Tzipi Hotovely that “This land is ours. All of it is ours...We expect as a matter of principle of the international community to recognise Israel’s right to build homes for Jews in their homeland, everywhere.” is demonstrative of Israel’s intent.After the electoral victory of Hamas in Gaza, Israel imposed a naval blockade, thus restricting the movement of goods and people through the narrow strip’s borders which in turn created a humanitarian crisis in the area. On 31 May 2010, eight unarmed civilian boats with more than 700 passengers of 36 different nationalities headed to Gaza, carrying a significant amount of humanitarian aid.
Members of the Israeli Defence Force (IDF) attacked the flotilla whilst the boats were still in international waters. The IDF dropped tear gas, blast, smoke and gas bombs, shot at unprotected civilians with real bullets and boarded the convoy. As a result of this attack, ten people died, dozens were severely injured and hundreds were detained, suffering degrading treatment meted out by the military and security forces.
The MV Mavi Marmara vessel—the ship which suffered the brunt of the attack—was registered in the Union of Comoros, a state party to the Rome Statute. On 14 May 2013, Comoros referred the incident to the ICC Prosecutor requesting the opening of an investigation for war crimes and crimes against humanity. Sadly, six months later the ICC Prosecutor announced that she was concluding the preliminary examination of the attack without any further action to be taken.
According to the Prosecutor, despite the existence of a reasonable basis to believe that war crimes under the jurisdiction of the ICC had been committed on the MV Mavi Marmara, she decided not to open an official investigation “because the potential case(s) likely arising from an investigation into this incident would not be of ‘sufficient gravity’ to justify further action by the ICC”.
In January 2015 Comoros, under article 53(3)(a) of the Rome Statute, requested the Pre-Trial Chamber of the ICC to review the Prosecutor’s decision, a request that was definitively granted by the ICC Chamber on 16 July 2015. The Chamber is of the opinion that the ICC Prosecutor erred in addressing the factors relevant to the determination of gravity under article 17(1)(d) of the Rome Statute and invited the Prosecutor to reconsider, as soon as possible, her decision not to open a formal investigation.
The Chamber believed that the Humanitarian Aid Flotilla incident was of sufficient gravity to justify a formal investigation.
First, the scale and the nature of the incident, which affected hundreds of people and included allegations of torture, demonstrate the gravity of the attack.
Second, the manner in which the assault was committed could be suggestive of the fact that the crimes were planned: the use of live fire prior to the boarding of the vessel, the unnecessarily cruel treatment of passengers, the systematic abuse of the victims once in Israel, and the perpetrators’ attempt to conceal the crimes are all factors suggesting the attack was, to a certain degree, planned, sanctioned or tacitly approved by military superiors. Indeed, the Chamber considered a relevant fact to be, that the persons likely to be the object of the investigation included “those who may bear the greatest responsibility for the alleged crimes committed”.
Finally, the Chamber also highlights that the impact of the attack on the international community, and on the Gaza population, is also suggestive of the gravity of the incident. The attack “would have sent a clear and strong message to the people in Gaza (and beyond) that the blockade of Gaza was in full force and that even the delivery of humanitarian aid would be controlled and supervised by the Israeli authorities”.
On certain occasions, the attack on a vessel has changed the course of History. The sinking of the RMS Lusitania encouraged the United States to enter the First World War and the blowing-up of the USS Maine started the Spanish-American War that led to Cuban independence. On this occasion, the attack on the Humanitarian Flotilla, and above all, the legal and criminal consequences of it, are likely to change the lives of millions of citizens over the World affected by the Israeli-Palestinian conflict.
The decision of the Chamber seeks to clarify the difficult question of how to weigh and assess the gravity of a potentially criminal incident, an essential but deeply disputed concept in International Criminal Law. Furthermore, this decision is especially relevant because it opens the possibility to investigate not only the war crimes allegedly committed by Israel against the civilians on the vessels, but also the blockade on the Gaza Strip.
It helps combat the atmosphere of impunity and the lack of accountability that dominates the Israeli-Palestinian conflict. It therefore constitutes a further step towards peace and justice in the region. The Chamber’s decision is a brave one and the international legal community must join its invitation to reconsider the opening of an investigation on the Humanitarian Aid Flotilla incident.
The impact of this decision is far greater than would appear to the outside observer. This is a watershed moment that could start a process of justice and accountability in the Palestine-Israel conflict.
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|Allen L. Jasson|