Court between A Rock and a Hard Place: Comoros Refers Israel’s Raid on Gaza Flotilla to the ICC
Comoros has referred the action of Israeli troops in boarding the flotilla headed to Gaza on 31 May 2010 to the International Criminal Court. The ICC Prosecutor has announced that she is opening a preliminary examination of the situation and it now remains to be seen whether this will lead to a proper investigation and perhaps even charges being brought by the ICC against Israeli troops or officials. Israel, of course, is not a party to the Statute of the ICC, but this does not itself mean that the ICC cannot exercise jurisdiction over Israeli nationals or officials (see my 2003 article on this issue). Comoros is a party to the Statute and the main vessel on which the Israeli actions took place, the Mavi Marmara, was registered in Comoros. Under Article 12(2) of the ICC Statute, the Court may exercise jurisdiction not only to nationals of State’s party to the ICC statute but also, crucially, where:
(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft [is a party to the Statute];
Since the Israeli action took place on a vessel that is registered in a State party to the ICC Statute, the action is within the jurisdiction of the ICC. Comoros also points out that a second of the six vessels in the Gaza flotilla boarded on 31 May 2010 – the M.V. Eleflheri Mesogios or Sofia – is registered in Greece which is also a party to the ICC. In addition, Comoros says that a further vessel boarded by Israel a week later – the MV Rachel Corrie– is registered in Cambodia, which is also an ICC State party. It must also be taken as referring the incident regarding those other vessels to the ICC (assuming there were any incidents committed on board those vessels that would amount to crimes within the jurisdiction of the ICC). It is worth noting that a State party is entitled to refer any situation involving crimes within the jurisdiction of the Court to the prosecutor. Thus Comoros is entitled to refer a matter that did not occur within its territory to the ICC.
Israel’s actions with regard to the flotilla have already been the subject of investigations by Israel, Turkey and by two UN bodies. The allegations that actions on board the vessels were contrary to international law finds support in the reports by the UN commissions (see Yuval Shany’s discussion of Human Rights Council’s Fact Finding Commission here, and Douglas Guilfoyle , Tamar Feldman and Marko’s discussion of the Palmer Report here, here here). However Israel’s Turkel Report comes to the opposite conclusion (see discussion by Amichai Cohen and Yuval Shany here). It is to be noted that the referral by Comoros comes just days after it was announced that Israel and Turkey were close to reaching an agreement on compensation for the Turkish victims of the incident.
The referral by Comoros is significant for the ICC for a number of reasons and as outlined below is likely to test political support for the Court. While action by the Court against Israel is likely to prove unpopular in some circles, failure by the Court to act in a situation involving Israel, and perhaps more importantly failure to act on a referral by an African State against a non-African State, will perhaps prove even more unpopular in a constituency crucial to the ICC.
The first way in which the referral is significant is that the referral by Comoros is, arguably, the first example in practice of how the State referral system in the ICC Statute was intended to operate – a State referring the actions of another State to the ICC. Although this is not the first State referral to the ICC, it is the first time that a State has referred a matter involving the actions of another State (or more accurately, the officials of another State) to the ICC. The other State referrals (those with regard to the Democratic Republic of Congo, Central African Republic, Uganda, Cote d’Ivoire and Mali) were all so-called “self-referrals”. They were instances of States referring actions occurring on their territory to the ICC. Defined as such, the Comoros situation is also a kind of “self-referral” – an instance of a State referring conduct occurring on this territory to the ICC. However, this referral is different as Comoros is specifically asking for actions of foreign State officials to be investigated. In previous cases of self-referrals, the ICC has investigated actions of nationals of foreign States (both nationals of other State parties and non-State parties) taking place on the territory of the referring State. For example, the investigation and prosecution of Rwandese nationals Bosco Ntaganda and Callixte Mbarushimana for crimes allegedly committed in the DRC, or of DRC national Bemba for crimes committed in the Central African Republic. However, the ICC has not yet taken action against officials of a non-State party for actions occurring in the territory of a State party. One point that could be made is that the fact that Comoros referral is both a referral by the territorial State and a referral against another State suggests that the theoretical and practical divide between so called “self-referrals” and “antagonistic referrals” (by one State against another) is not as big as has been suggested. This point was made by Darryl Robinson in an excellent article discussed here a couple of years ago.
Secondly, the referral by Comoros is significant politically and institutionally because what we have is an African State referring a situation involving a non-African State to the ICC. Given the tension between the African Union and the Court, this referral raises challenging issues for the Prosecutor. If the Prosecutor declines to investigate this becomes one more point that may be used to argue that the Court is simply a Court for (read ‘against’ Africans). I have stated on several occasions (see here, and here ) that I think the tension between African States and the ICC is overblown. The current prosecutor Fatou Bensouda, who is of course African, has, in my view, done a fantastic job in pointing out that prosecution of African criminals should be regarded as the ICC taking African victims seriously. One point that we have both made is that most of the ICC situations involving African States have come to the Court with the support of those States (self-referrals and even the Kenya propio motu situation) or other African States (eg on the UN Security Council). However, it would be politically damaging if in the first situation where an African State refers a matter involving a non-African State, the ICC declines to investigate. The prosecutor is not bound to commence an investigation following a State referral but a failure to investigate the Israeli action would be the first time that there have been no ICC investigations following a State referral. If that happens, cue the chorus of disapproval from other African States.
Thirdly, the referral raises the politically difficult issue of the ICC exercising jurisdiction over Israeli action. There has been the attempt by Palestine to accept the jurisdiction of the ICC under Article 12(3) of the Statute, while remaining a non-party. That attempt to create ICC jurisdiction over Israeli action has thus far proved unsuccessful (as discussed here) as the former ICC Prosecutor decided that he could not take action based on the Palestinian declaration. While that declaration would have given the ICC jurisdiction over all acts committed in Palestine, this referral only gives extremely limited jurisdiction with regard to acts occurring within the context of the Israeli-Palestinian conflict. Only the acts occurring on board those vessels are covered by the referral. Nonetheless, one can also expect significant disapproval from Israel and some other States (not least from conservative politicians in the United States) if the ICC does commence an investigation.
The combined effect of the second and third points above is that the ICC Prosecutor can expect a measure of disapproval whichever way she turns on this issue. I wonder whether this referral might be the Nicaragua moment for the ICC. When the International Court of Justice was faced with that case against the United States in the 1980s it chose to accept jurisdiction in a case against a super power with the consequence that the US withdrew its optional clause accepting the compulsory jurisdiction of the ICJ. However, that acceptance by the ICJ of jurisdiction and the subsequent decision against the US – on the merits – proved to be the turning point in the Court’s popularity. A court that had previously had little to do (at least in the 20 or so years up till that point) became rather popular for States. By contrast, the decision of the ICJ in the 1960s not to decide the South West Africa cases (brought by Ethiopia and Liberia against South Africa) was arguably the reason for the lack of affection towards the court by many (developing) States. Although expected reaction is not sufficient reason for the ICC to open (or to decline) an investigation, I would be surprised if these considerations did not cross the mind of the ICC Prosecutor.
One issue that the Prosecutor must consider is whether the referral falls within the scope of State Party referrals as provided for in the Statute. Under Articles 13(a) and 14(1) of the ICC Statute, a State Party may refer to the ICC Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed. States may not refer cases to the ICC, only a situation. It is then up to the Prosecutor on the basis of her investigation to decide on which cases, if any, to commence. One question raised by the referral of the Flotilla raid to the ICC is whether this is incident qualifies as a situation. The Statute does not define ‘situation’ but it is taken to be broader than a case. I agree with Kevin Jon Heller at Opinio Juris that though the incident referred by Comoros is much narrower than other situations referred to the ICC, it is a ‘situation’ under the Statute. The Statute itself contemplates that a situation may only consist of one crime within the jurisdiction of the Court. Although most situations have referred to the entire territory of a State, this has not been so invariably – the Security Council only referred the situation in Darfur (Sudan) to the ICC and Uganda only referred the situation involving the Lord’s Resistance Army in northern and western Uganda to the ICC. One may think that a situation must refer to the entire conflict (where it relates at all to a conflict) or to entire genocide or attack on a civilian population (in the case of crimes against humanity). The way in which the ICC responded to Uganda’s referral would tend to support this. Although it appeared that Uganda was only referring acts by the Lord’s Resistance Army, the ICC Prosecutor interpreted the referral so as to encompass all crimes committed in Northern Uganda in the context of the conflict involving the Lord’s Resistance Army. This approach would suggest that a referral of a situation must relate to the conflict entire Palestinian conflict or perhaps the conflict between Hamas and Israel. However, the ICC does not have jurisdiction over that entire conflict. It only has jurisdiction over very limited acts committed in the course of that conflict. A State party can only refer matters already within the jurisdiction of the ICC, so for the purposes of referral by States parties, situation can only mean those matters within the Court’s jurisdiction. Therefore a limited referral ought to be accepted where it is defined to confine matters to those within the Court’s jurisdiction.