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Thursday, May 16, 2013

The Comoros Referral to the ICC of the Israel Flotilla Raid: When a 'situation' is not really a 'situation'

As has been widely reported already, The ICC OTP announced today that it had received a referral from the Comoros "in relation to the event of May 2010 on the vessel Mavi Marmara". You will recall that this boat was part of the group of boats that tried to reach Gaza at the time and which were boarded by the Israeli army, resulting in a number of deaths and injuries.

The usual suspects of the blogosphere have already put up excellent posts on this development: Kevin Heller (here and here), Dapo Akande (here) and William Schabas (here). They already covered a number of more political issues which I won't delve into here, such the perception issues that would flow from the initiation or not of a formal investigation among African States and the international community, the alleged anti-palestinian bias of the ICC OTP or the apparently poor timing of the referral given that Israel and Turkey seem to be getting close to finishing their negotiations on the incident.

I also won't go discussions of certain legal questions that come up in relation to this referral. I would tend to agree with Kevin's evaluation that this would not meet the gravity threshold under Article 17, especially given the response given by the Prosecutor in the Iraq communications. However, I'm wondering if the Abu Garda case, which concerned a single attack on a peace keeping compound, and where it was considered that the gravity threshold was met, is not a indication to the contrary.

Also, I find the referral thoroughly sloppy on the legal characterization of the facts as war crimes and crimes against humanity. It unconvincingly tries to link the events to the Gaza situation (discussions on the Palestinian declaration to the ICC in 2009 are for me beside the point here) and there is a meager two paragraphs on crimes against humanity that would be laughable if not present in a formal State referral to the ICC.

Finally, as an aside, I think too much is being made of the link between the fact that Comoros is the State of registration of the Mavi Marmama and the fact that Comoros is doing the referral, as if the former implied the latter. However, legally, there is no need to make that link. What's important is that the alleged crimes were committed on the territory of a State Party, but after that, any State Party could have made the referral.

But the main point I want to focus on is whether this is really a referral of a "situation" as required by the ICC Statute. Both Dapo and Kevin make strong cases on the fact that this is indeed a "situation", because specific cases have not been referred (which would not be allowed) and because it is not an issue that potentially only one crime has been committed (I'm not entirely sure why both of them make this last point so vocally, as even the referral suggests, even unconvincingly a number of alleged crimes falling within the jurisdiction of the Court...). I'm still not convinced for the following reasons.

To start out, it is interesting to note that, reading the referral, the scope of the "situation" that is referred is subject to interpretation. The Mavi Marmara is mentioned a number of times in the document, but the actual referral seems to be broader and cover "IDF's attach on the humanitarian aid flotilla on the 31st of May 2010". This ambiguity is reflected in the OTP Press release with only mentions the Mavi Marmara in the title of the release, while using the broader scope in the text of the release.

I think both interpretations raise different questions that I'm struggling with.

If the situation referred is the attack on the Mavi Marmara, I can't shrug the feeling that this is stretching the notion of "situation" a little too far. Of course, a "situation" needn't be the whole territory of a State (as illustrated by the Uganda and Sudan referrals). However, I'm wondering if narrowing down a referral to a single event doesn't make a joke out of the whole idea of what a "situation" is (as well as of prosecutorial discretion in the selection of cases). Would we really call, for example, the "referral" of the destruction of the bridge of Mostar or the Sarajevo snipping, "situations"? Or to take an ICC example, what would we have said if only the attack on the AU peacekeepers, for which Abu Garda was charged, had been referred by the Security Council?

Moreover, the thin line between "situation" and "case" becomes a little blurred if this referral is accepted. Indeed, at the ICC, a case is when, within a situation, a specific individual becomes the focus of investigations for specific crimes.  For me, allowing only one incident to be referred under the label "situation", would be like saying in a national context that investigation into a murder is a "situation"... until a suspect is identified and it becomes a "case". This would be a ridiculous semantic distinction. In other words, I think that we are here very close to a "case" being referred to the ICC. This feeling is obviously strenghtened by the fact that the perpetrators are already know and pointed to in the referral, at least collectively, as the IDF.

Let me be clear, I'm not saying that this referral does not fit the ICC definition as it currently stands and as put forward by Dapo and Kevin (given that it is extremely vague both in the Statute and the case law...), but should this be considered as a "situation", thus allowing the ICC to take on specific incidents, rather than broader "situations" (for lack of a better word...),  I think this could change the logic of ICC intervention in ways that would not be necessarily welcome.

If, on the other hand, the "situation" is the attack on all the boats, notably the two other ships flying flags of State Parties (Greece and Cambodia), then a different question arises. The issue can become whether the referral is too broad rather than too narrow. Indeed, the referral covers crimes committed not on the territory of one State Party, but on the territory of several State Parties. Again, nothing in the Statute seems to prevent that, but I'm wondering if this is really what the drafters intended, because it could lead to the consequence of actually de-territorializing.

Indeed, what the Comoros are essentially saying, is that the key element is the attack and its perpretrators, irrespective of the territory it was committed on (aside from the jurisdictional requirements of course). This means that tomorrow, a State could refer the crimes committed by a global terrorist organization, anywhere on the territory of a State Party. Would that fit our instinctive notion of a "situation"? If it doesn't, we must be cautious at accepting a referral which does the same here: the attack of the IDF on the flotilla, irrespective of the territory it was committed on. I know it seems difficult to compare the two situations, because we are just talking about boats here, not entire countries, but legally, it's the same difference.

All in all, I think that the fact that this is a "situation" under the Rome Statute is not as clear-cut as we would like to think. And if it turns out to be, I think it sets a precedent that can have far-reaching consequences that we should be aware of and that might affect the way the ICC operates in ways that go further than the specific political context in which this referral comes.


  1. Thank you for your excellent post. Your central argument--that the attack on the Mavi Marmara should not be considered a “situation” as required by the Statute--is well taken from the policy perspective. However, the Court’s case-law sheds more light on the distinction between “situations” and “cases” as it is understood by (at least some of) the Hague judges. On the basis of this understanding, the situation referred would, in my opinion, be a “situation” under the Statute. Here’s the quote:

    The Chamber considers that the Statute, the Rules of Procedure and Evidence and the Regulations of the Court draw a distinction between situations and cases in terms of the different kinds of proceedings, initiated by any organ of the Court, that they entail. Situations, which are generally defined in terms of temporal, territorial and in some cases personal parameters, such as the situation in the territory of the Democratic Republic of the Congo since 1 July 2002, entail the proceedings envisaged in the Statute to determine whether a particular situation should give rise to a criminal investigation as well as the investigation as such. Cases, which comprise specific incidents during which one or more crimes within the jurisdiction of the Court seem to have been committed by one or more identified suspects, entail proceedings that take place after the issuance of a warrant of arrest or a summons to appear. (Situation in the Democratic Republic of the Congo (ICC-01/04), Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5, and VPRS 6, 17 January 2006, para. 65, footnotes omitted.)

    This passage reflects two things. First, the quite vague wording chosen by the Pre-Trial Chamber (PTC) permits seeing a situation such as the one referred to the ICC by the Comoros as one meeting the criteria. After all, an attack on a particular ship (or several ships, the distinction here would not matter much) is defined in terms of sufficiently clear territorial parameters.

    Second, and more important, it shows that the distinction between “situations” and “cases” is of a procedural nature (at least for this PTC; although as far as I know, the ruling has not been challenged after). What this means is that these two terms differ in that they entail different types of proceedings before the Court. It is perfectly in line with this understanding that a “situation” referred to the Court would give rise to a criminal investigation that would result in the identification of one “case” only. Under those circumstances, the two would indeed come very close from the material point of view, but they would still remain procedurally distinct as apparently desired by the PTC in the cited decision.

    Whether this procedural understanding of the distinction between “cases” and “situations” will take a firmer hold in the ICC’s jurisprudence will, of course, depend also on the resolution of the present referral.

  2. Thanks for the specific reference to the case law.

    As I said, I don't dispute that this referral might indeed fall within the scope of a 'situation' as currently defined by the case law. I just think that it pushes the distinction between 'situation' and 'case' to absurd limits. It cannot just be the formal issuance of an arrest warrant to triggers the change of phase for me. To pick up on the quote you give from the PTC, what are the 'specific incidents' that would constitute a case in the mavi marmara 'situation'? each individual murder? The Mavi Marmara attack is in itself a specific incident. To say otherwise, I think, is slightly counter-intuitive. But that has never been a obstacle for the ICC before...