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Investigating Gaza flotilla deaths would sacrifice International Criminal Court's legitimacy

The violent takeover of the Mavi Marmara simply does not stack up to other violent mass executions of passive civilians. Referring a relatively minor incident to the ICC in the context of a highly politically charged conflict would confirm the suspicions that the court is no more than a political wolf camouflaged in the neutral trappings of criminal justice.

By Noam Wiener

Mavi Marmara. (Free Gaza movement/CC BY-SA 2.0)

On May 14, the Union of Comoros, represented by Turkish attorneys, sent the Prosecutor of the International Criminal Court (ICC) a referral requesting it commence an investigation into Israeli conduct, due to alleged war crimes and crimes against humanity.

The complaint does not refer to Israel’s illegal settlement policy, nor does it refer to the use of phosphorous shells during Operation Pillar of Defense. The referral does not pertain to the rather liberal use of artillery by the Israeli military during Operation Cast Lead either. No, Comoros is alleging that war crimes and crimes against humanity of a gravity that ought to engage the ICC took place when Israeli commandos boarded the MV Mavi Marmara during the flotilla incident in May of 2010.

Comoros, a member of the ICC, can refer the case to the prosecutor because the Mavi Marmara was sailing under a Comorian flag. Thus, any alleged crimes committed on board the Marmara took place on Comorian sovereign territory, granting the ICC jurisdiction in the case.

I am a firm believer in the moral imperative to bring international criminals to justice, and thus am also a supporter of the ICC. Yet I think this referral is an abuse of the institution of international criminal law. The abuse is not the result of jurisdictional overreach – the grant of ICC jurisdiction over individuals who are citizens of non-member states is perfectly legitimate if these individuals commit crimes in the territory of a member state. Further, the reason I say it is an abuse of the ICC is not because the Israeli military did everything it ought to have done to minimize casualties – it did not, the Israeli operation was reckless and dangerous. It is simply that even if all the allegations are true, this is not a case of the magnitude or gravity that ought to take up the time of the prosecutor.

That the ICC has jurisdiction over alleged crimes does not mean the prosecutor is obliged to commence proceedings. I do not intend to provide a complete legal analysis here of the admissibility requirements of the ICC (see legal blogs here, here, and here for some legal analysis or read the Rome Statute here).

Instead I merely ask that we think of some of the cases that the ICC and other ad hoc international criminal tribunals have dealt with so far: World War II in Europe and in Asia (millions killed), the killing fields in Cambodia (two million victims), the wars in the former Yugoslavia (tens of thousands killed and millions displaced), the genocide in Rwanda (hundreds of thousands killed), the civil war in Sierra Leone ( tens of thousands killed and millions displaced), or the fighting in the Congo (tens of thousands killed in each, thousands of child soldiers recruited).

And then look at the nine dead on the Mavi Marmara.

My intention is not to be disrespectful to the people who lost their lives trying to break into Gaza, or to argue that the Israeli military was in the right. Every life lost is a tragedy. But in a world of limited resources one must choose how to allocate prosecutorial time and money so as to go after the gravest crimes. The violent takeover of the Mavi Marmara simply does not stack up to violent mass executions of passive civilians. Referring the situation to the prosecutor, with the knowledge that it does not measure up to the standard, has costs.

First, one of the main arguments made by detractors of the ICC has been that it will be used as forum to bring petty political based complaints to harass states instead of acting as a neutral arbiter. The scale and severity of this action, when compared to genocide and campaigns of mass rape and extermination, plays right into the hands of the ICC’s opponents. Referring a relatively minor incident in the context of a highly politically charged conflict would confirm suspicions that the ICC is no more than a political wolf camouflaged in the neutral trappings of criminal justice.

Second, Israeli conduct in the occupied territories and Gaza is sometimes manifestly criminal (settlements) and at other times most likely criminal (instances of indiscriminant use of force – I say most likely because the conduct is subject to claims of proportionality). The results of such conduct are disastrous, with the occupation costing thousands of lives and causing grave injustices over the years. But all this is simply irrelevant to the case of the Mavi Marmara. Trials, unless the judges lose control of the courtroom, focus on specific questions relevant to specific charges rather than on broad political contexts. The Marmara case, should it reach trial, will focus on questions such as the degree of force the Israeli military could use to enforce its blockade, in light of the resistance of the people on board the ship, and other similarly technical questions that have nothing to do with the plight of Palestinians. Thus, this referral risks assisting Hasbara experts in “spinning” the discussion away from more serious violations stemming from Israel’s conduct.

The ICC is still very much a nascent institution. Although it should not shy away from taking on serious cases due to political pressure, adhering to the gravest manifestations of international crimes is crucial to the court’s legitimacy. It would be best for supporters who believe that international law has an important role to play in defining basic norms of behavior and punishing perpetrators who violate them to refrain from setting unnecessary pitfalls for the ICC and sacrificing its legitimacy in order to promote narrow political ends.

Noam Wiener is a doctoral candidate at the University of Michigan Law School researching international criminal law.

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  • COMMENTS

    1. aristeides

      In short, Israel should have impunity for its crimes because it constantly complains that investigations are “politically charged”?

      What a load of bull!

      Reply to Comment
      • Noam W.

        No – if you want to take Israel to task, get the court to investigate crimes that are of sufficient gravity (I suggested a few in the post) instead of wasting the court’s time with referrals that are inadmissible.

        Reply to Comment
        • aristeides

          Inadmissible? By whom?

          If cold-blooded murder of a wounded and unarmed passenger on the high seas isn’t admissible, nothing is.

          Reply to Comment
        • Noevil9

          If you bundle Israel crimes against the Palestinians and its neighbors ,you will have more than suffeciant gravities to not just take Israel to the ICC, but to condem it too. As another poster said, Israel has been getting away with too many crimes for so long, not just in Palestine but on other sovorgine countries soil.

          Reply to Comment
    2. Engelbert Luitsz

      The legitimate complaints of the Palestinians are either frustrating the peace process, or are sacrificing International Criminal Court’s legitimacy. There’s just no way for them to do it right, is there?

      Reply to Comment
      • Noam W.

        Engelbert – see my response to Aristeides.

        Reply to Comment
        • Engelbert Luitsz

          Bij comparing the Marmara murders to these huge numbers of genocides, you make a mistake. The first conviction of the ICC was for Thomas Lubanga, sentenced to 14 years for Congo war crimes. An individual, not a genocide was on trial. And even then, as the Guardian reported: “The ICC has been criticised for focusing too heavily on war crimes in Africa and not the rest of the world.” You can never do it right, apparantly. It’s up to the Palestinians to decide if they find the Marmara murders important enough to go to the ICC, and it’s up to the ICC to decide wether they will accept the charges. You can see the Marmara murders as an individual case in the broader perspective of ethnic cleansing, and then it’s not all that different from the trials concerning Congo or Yugoslavia.

          Reply to Comment
          • directrob

            I understand your feelings but the Bahr Idriss Abu Garda case is/was of the same order of magnitude.

            Reply to Comment
          • Noam W.

            Engelbert, I think you are confusing situations and cases, and also country responsibility and personal responsibility.
            .
            I think this is partially my fault because I assume general knowledge of the legal material and am not as precise as I ought to be in a non-professional publication.
            .
            First of all, the ICC always tries individuals, and individuals can indeed be responsible for “smaller” crimes. But these are always in the context of graver situations.

            This flotilla incident does not open the entire Gaza conflict. If the entire Gaza conflict was the situation, then this could be one incident for which one or more people could be indicted. But that is not the case here, because Comoros can only refer the actions that took place on Comorian territory. So this cannot be approached by the Court in the broader case of ethnic cleansing (and BTW – ethnic cleansing in Gaza?).

            Reply to Comment
    3. Piotr Berman

      I do not understand why Union of the Comoros cannot sue for attacking a ship registered there and for the murder of passengers.

      The fact that other parties may have “better cases” does not provide any relief to Comoros (or murdered Turks). I am not an expert on legal venues, but injured parties should be allowed to sue. Moreover, it is easier to sue about allegations that have short description and reasonably small number of needed elements of evidence. A lawsuit about a “truly worthy matter” can easily last a decade or more.

      Reply to Comment
      • Noam W.

        Piotr I agree with you that injured parties should be able to get redress. And if you Comoros wants to get compensation for the damage it was caused there are venues in which to do it.

        But that is not what the ICC does – the ICC has a very specific role – it is not a residual mechanism for correcting global injustices. It is a criminal court designed to deal with the gravest war commissions of international crimes.

        Reply to Comment
    4. Jenny

      If you had read the autopsy reports of the people shot (which I have done), I doubt you’d be so willing to argue that this case isn’t worth bothering over.

      Reply to Comment
      • aristeides

        Exactly. And the one video that managed to escape the wholesale IDF confiscation of evidence. It very clearly shows the execution of a helpless person at point-blank range.

        Reply to Comment
    5. Richard

      Noam has opened a can of worms here, because really nothing Israel has done is of sufficient gravity for the ICC to care. That’s pretty obvious to anyone who’s studied this subject in an American law school and is being honest about it. The only reason the ICC is even discussed in regard to Israel is that the people bringing it up have no regard for the ICC – they’re just after Israel by any and all means. That’s why this piece was pointless to write at best, and a big concession at worst.

      Reply to Comment
    6. John Turnbull

      The ICC is perfectly capable of declining the case if they share your view.

      But note that the case involves the question of the legality of the blockade itself and the consequent collective punishment of 1.5 million people for a period of time that is far in excess of any specific military objective.

      That’s a key issue in international law.

      Reply to Comment
      • Noam W.

        John, if the blockade was the issue of the case maybe there would be something to talk about. But the blockade is not the issue. Comoros has no legal grounds to refer the blockade to the Court (and as despicable as the blockade is, I don’t think it amounts to an international crime as those are defined in the ICC statute).

        Reply to Comment
    7. The ships were boarded before they reached the blockade line, so in international waters by everyone’s definition. This might be reason enough to consider the case.

      I do not, however, think it will have any real impact on Israel at all–and will confirm many conservative American’s view that the ICC is dangerous.

      Reply to Comment
      • Noam W.

        Greg, piracy or other generally violent acts in international waters are not war crimes in and of themselves.

        So this does not create any reason to investigate the case.

        Reply to Comment
        • Joe

          Noam, I am not claiming to be any kind of expert in international law.. however, the International Criminal Court (ICC), Elements of Crimes, 2011 document refers to

          Article 8(2) (a) (i)

          Elements
          1. The perpetrator killed one or more persons.
          2. Such person or persons were protected under one or more of the Geneva Conventions
          of 1949.
          3. The perpetrator was aware of the factual circumstances that established that protected
          status.

          4. The conduct took place in the context of and was associated with an international
          armed conflict.

          With respect to element 2, surely it can be argued that Turkish unarmed relief workers are protected under the fourth Geneva conventions (given that even if there can be said to be a conflict between Palestinians and Israel, Turkey is not at war with Israel).

          I don’t think it will stick and even if it has jurisdiction, the ICC is not obliged to take cases. But to say that the case is entirely without merit and outwith of the ICC jurisdiction does not appear to be the case.

          Reply to Comment
          • Noam W.

            Joe I think I fairly clearly stated in my post that the question is not on of material jurisdictional, but whether the gravity is sufficient to make the case admissible.
            .
            If you are referring to my comment to Greg, I merely pointed out that the fact that the conduct took place in international water doesn’t make any difference in terms of the ICC’s material jurisdiction.

            Reply to Comment
          • Joe

            Noam, I refer you to the element above: only one or more persons need to have been killed. That is the bottom limit on gravity with respect to that kind of war crime according to the ICC documents. So this argument about gravity is not supported by the ICC itself.

            Reply to Comment
          • Noam W.

            Joe, you should look at the Prosecutor’s response to referrals regarding UK’s conduct in Iraq in regards to this issue. I think they don’t allow hyper-links in comments, so I am not hyper-linking, but you can Google it.

            Reply to Comment
          • Joe

            As I said above, just because the ICC could take on a case, it doesn’t mean that it will. But to suggest that they can’t in this case – because clearly they can. Most likely they will chose not to.

            Reply to Comment
    8. Leor

      Noam, You wrote “if you want to take Israel to task, get the court to investigate crimes that are of sufficient gravity” – but that’s perhaps the entire issue, that the Palestinians are unable to take Israelis to court for the war crimes they commit. Palestine is not a member of the ICC, and nor will they seek admission since their leadership is heavily bribed by American and European governments. Israel also didn’t sign or ratify the ICC treaty. So here we have one case in which the ICC finally might agree to discuss an Israeli act of aggression, since it was against a third party in international waters. So they should avoid taking this step too?

      Reply to Comment
      • Noam W.

        Leor, this does not work like Al Capone and his income tax evasion.
        The ICC has certain admissibility requirements, gravity among them. If a case is not admissible because of insufficient gravity, the court shouldn’t hear it.

        Reply to Comment
      • Noam W.

        I think some of the people who posted are missing a key point.
        .
        The ICC has admissibility requirements – one of which is gravity.
        .
        If what you are saying is “this is not grave enough, but we should make it admissible anyway to catch Israel”, what you are essentially saying is “let’s change the rules of the Court for a specific case”.
        .
        The whole point of criminal justice is that it takes a higher moral stand and does not change ex post facto for specific cases – otherwise it becomes arbitrary and capricious instead of neutral and just.
        .
        If you want to try Israel for its violations of international law, doing so while violating the law itself is no way to go about it.

        Reply to Comment
        • directrob

          Noam,
          I think that in the case of war crimes, unlike in crimes against humanity, only gravity is required not scale. The gravity threshold is for war crimes not clearly defined (killing ten blue helmets might qualify).

          If I interpret things correctly in theory the ICC could take up the case if the killings were war crime and if the case generated sufficient alarm and if high a ranked Israeli was personally responsible. It could of course also decide that a war crime was maybe committed but that the court has something better to do.

          Reply to Comment
          • Noam W.

            Directrob,

            The blue helmet is one case within the situation of genocide and mass atrocity in Sudan, over which the ICC has jurisdiction.

            If the entire Gaza conflict was being investigated, the Marmara incident could be one of the cases and then I would have a very different opinion of the situation. The problem here is that Comoros cannot refer the conflict in Gaza because it has no jurisdiction. And as a situation, the Marmara incident is just not that grave.
            .
            I assume by second paragraph of your comment that you read the Ntaganda pre-trial chamber decision (or some analysis of it) – you should be aware that it was overturned on appeal and that both of these criteria – social alarm and high rank were ruled by the Appeals chamber to be unnecessary.
            .
            This doesn’t affect the analysis here specifically – but since you have taken the time to do some research, you should look at the appeals chamber decision as well.

            Reply to Comment
          • directrob

            Noam thanks for the correction.

            For other views than Noam’s see:
            http://dovjacobs.blogspot.nl

            It seems that there are interesting graveness and other issues with this incident / case / situation. Nobody in these blogs seems to say outright that the court cannot investigate (and most expect the court not to investigate)

            Reply to Comment
          • Noam W.

            Directrob, if you will hit the hyper-links in the article, you will see that I also linked to Dov Jacobs blog.

            Reply to Comment
          • directrob

            Noam thanks for the correction.

            For more opinions about the case see:
            http://dovjacobs.blogspot.nl

            It seems that there are interesting graveness and other issues with this incident / case / situation. Nobody in these blogs seems to say outright that the court cannot investigate (and most expect the court not to investigate)

            Reply to Comment
    9. Noisy Tappet

      “A single death is a tragedy, a million deaths is statistic,” said Stalin, and he should know. The Mavi Marmara incident is the tip of a very ugly war-crimes conspiracy that MUST be investigated.

      Reply to Comment
    10. Corey Mondello

      The USA doesn’t follow international law yet have veto power in the ICC, I’d say they already lost respect and those who don’t pay attention the them don’t care about international laws

      Reply to Comment
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