Like a shot
out of the dark, Israel has been taken to the International Criminal Court by
Comoros. Yesterday, Comoros submitted a referral in accordance with article 14
of the Rome Statute concerning the Israeli attack on the so-called Gaza Freedom
Flotilla in May 2010. The referral letter is available on the Court's website.
In the days
and weeks to come, there will be much chattering on the blogs and in law
journals about the legal details. Is the referral admissible? Does it meet the
gravity threshold? What about complementarity? Should the Prosecutor invoke the
‘interests of justice’ and decline to proceed?
ultimately, like all of the other decisions to proceed or not to proceed with
an investigation, politics will determine the outcome. Judging by the history
of the Office of the Prosecutor, any contrived technical argument will suffice
in order to avoid the Court addressing the situation in Palestine. Because
everybody knows that the Prosecutor is terrified to deal with the situation in
Palestine. It risks upsetting the increasingly cordial relationship between the
Court and the United States.
referral has some intriguing and unique legal features. Like previous
applications of article 14, it is a ‘self-referral’. Comoros is referring a
situation that took place on its own territory. The MV Mavi Marmara, where the
main attack took place, is a Comoros vessel. In accordance with article 12 of
the Rome Statute a ship flagged in Comoros is deemed to be part of its
But as the
referral makes clear, Comoros is referring the situation on its own territory
because of the acts of another State. In that sense, it is really the first
referral directed by one State against another. And it is also of interest
because although Comoros is not and cannot charge Israel with the crime of
aggression, the referral is entirely related to an aggressive act by one State
against another (and in which the alleged aggressor will, of course, claim to have
been acting in self defence).
statement yesterday acknowledging the referral, the Prosecutor indicated that
she will now consider whether or not to initiate an investigation. There is no
obligation on the Prosecutor to proceed. No referral, whether it is by a State
party or by the Security Council, compels the Prosecutor to proceed. In practice,
the Prosecutor has accepted every referral to date. This is likely to be the
first referral that the Prosecutor refuses.
decide not to investigate, article 53 becomes operational. It entitles Comoros
to seek revision of the Prosecutor’s decision by a Pre-Trial Chamber. That too
would be a first for the Court, because there has never before been such a
proceeding. We do not know how the judges will interpret article 53. But we
have some hints, because the nature of the revision is quite similar to what is
contemplated by article 15, when the Prosecutor seeks authorisation to
investigate a situation. Decisions by the Pre-Trial Chambers pursuant to
article 15 indicate a very deferential and permissive attitude. Judges have
been very reluctant to attempt to second-guess discretionary decisions by the
Prosecutor with respect to priorities of prosecution. We can expect something
similar if this case ever gets to the article 53 stage.
Prosecutor does not need the referral in order to address the situation in
Palestine. The Prosecutor can exercise jurisdiction over the territory of
Palestine since 1 July 2002 as a result of Palestine’s declaration of January
official statement has been issued, it seems that the Prosecutor does not
consider the January 2009 declaration to be effective. Readers will recall that
after studying the Palestinian declaration for more than three years, the
former Prosecutor issued a statement saying that the issue of whether or not
Palestine was a State was to be determined by the General Assembly and not the
Prosecutor. The General Assembly recognized Palestine as a full observer State
in November 2012. The Prosecutor does not seem to dispute the fact that
recognition by the General Assembly resolves the issue of Palestinian statehood
for the purposes of article 12.
position she is taking by which a new declaration is required is based on the
erroneous proposition that Palestine became
a State when the General Assembly admitted it in November 2012. The General
Assembly resolution provides confirmation that Palestine was a State. Under
general principles of law, statehood is determined according to several
criteria, but membership, whether as a full member or observer, in the General
Assembly is not one of them. Taking the position that Palestine must issue a
new statement is just one further example of the Prosecutor’s desire to avoid
having to deal with the substance of the situation, something driven by the
political perspective mentioned above.
famous and important of the observer states is Switzerland. It was admitted by
the General Assembly in 1948 and remained in that status until becoming a
Member State in 2002. Would the Prosecutor consider that Switzerland was not a
State prior to 1948?
Assembly admission of an observer state is simply a fact to be weighed when
assessing if an entity really is a State in accordance with article 12.
Switzerland didn’t need observer status in the General Assembly in order to
become a State. And perhaps one of the other observer states, the Holy See, isn’t
really a state at all, despite recognition by the General Assembly.
Palestine were to submit a new declaration, the Prosecutor might very well deny
it any retroactive effect. She has not yet taken a position on this. But given
her anathema to things relating to Palestine, I would expect her to claim that
Palestine can only give jurisdiction to the Court from November 2012, when it
‘became’ a State according to the reasoning her Office appears to have adopted.
be a very perverse position. Because if Palestine cannot give jurisdiction over
its territory back to 1 July 2002, then who can? Surely not Israel, because we
are talking about occupied territory. Is it really thinkable that the
Prosecutor would recognize what would be, in effect, a black hole that is
immune to the jurisdiction of the Court? This cannot be consistent with the
object and purpose of the Rome Statute.
flotilla events are probably the weakest basis for Palestine-related
prosecutions at the International Criminal Court. The best focus for the
Prosecutor – and something she can do on her own, without any referral, and by
acknowledging the validity of the January 2009 declaration – is an
investigation into the ongoing settlement policy of Israel. It is unlawful in
international law and a crime under the Rome Statute. A decision by the
Prosecutor to investigate the situation of the settlements might help the world
to address a situation of festering and intolerable illegality. And while it
might anger a few powerful states, it would do wonders for the Court’s
reputation in Africa and elsewhere in the Global South.
Thanks to Maria Varaki.