It is being reported (by Reuters, the Jerusalem Post, and others) that the International Criminal Court’s Office of the Prosecutor has closed its preliminary examination into the situation involving Israel’s May 2010 raid on the “Freedom Flotilla,” which was launched with the aim of breaching the Israeli-Egyptian blockade of Gaza. This situation had been referred to the Court by the Union of the Comoros (the filings are here) with the jurisdictional hook being that one of the vessels involved, the MV Mavi Marmara, had been registered in that country. A state referral automatically triggers what is called a “preliminary examination,” an open source inquiry dedicated to determining whether there are grounds to conduct a full investigation into particular crimes committed by particular defendants. On the basis of information in her possession, the Prosecutor apparently determined that while war crimes may have been committed, the incident did not meet the requisite gravity threshold. This outcome is consistent with the reasoning that the Office of the Prosecutor has employed with respect to other preliminary examinations involving small numbers of deaths as compared to other situations under consideration.

Legal Background

As we have discussed in connection with the Iraq preliminary examination, during a preliminary examination, the Prosecutor considers the factors listed under Article 53(1)(a)–(c):

  • jurisdiction,
  • admissibility (which encompasses a consideration of complementarity and gravity), and
  • the interests of justice.

Although there are three main considerations, technically, a preliminary examination involves four phases, with the first being a filter aimed at weeding out situations that are manifestly outside of the Court’s jurisdiction (such as those that involve the commission of crimes committed on the territory of a non-party state by nationals of a non-party state or the commission of non-ICC crimes). It should be emphasized that this analysis is undertaken on the basis of very limited information that is publicly available, provided by outside parties, or located at the seat of the Court; the Prosecutor does not undertake anything in the way of a full-scale evidentiary investigation. Although she does not enjoy full investigative powers at the preliminary-examination stage, she can seek additional information from states, U.N. organs, NGOs, and other parties concerned, as well as receive written or oral testimony at the seat of the Court (Article 15(2) and Rule 104(2)).

Depending on the outcome of the preliminary examination, the Prosecutor may

  1. decline to initiate an investigation,
  2. continue to assess relevant national proceedings,
  3. continue to collect information, or
  4. initiate an investigation, subject to judicial review in the event of a situation initiated by the Prosecutor in the exercise of her proprio motu powers.

The OTP has generally conducted this inquiry in a sequential fashion. Thus, the Prosecutor first assesses the question of jurisdiction. If there are reasonable grounds for concluding that crimes within the jurisdiction of the Court have been committed, then the Prosecutor turns to the elements of complementarity and gravity. Once the Prosecutor has satisfied herself that there is a reasonable basis for believing that there is jurisdiction and that the situation is admissible, she will analyze the interests of justice. Following a preliminary examination, the Prosecutor will undertake an investigation into a situation based on the information provided to her (which can come from states, individuals, groups or organizations), unless she has reasonable grounds to believe that the Court will not have jurisdiction, or that complementarity requires the Court to defer to a national proceeding, or if the gravity of the alleged crimes does not warrant the assertion of jurisdiction. Even if the Prosecutor satisfies herself that these elements are met, she may still decide not to pursue an investigation if—based upon the interests of victims, other stakeholders, and the gravity of the crime—she concludes that there are substantial reasons to believe that such an investigation would not be in the interests of justice. In a policy paper on preliminary examinations, the Prosecutor has made clear that she would only invoke “the interests of justice” to not initiate an investigation in “highly exceptional” circumstances:

In light of the mandate of the Office and the object and purpose of the Statute, there is a strong presumption that investigations and prosecutions will be in the interests of justice, and therefore a decision not to proceed on the grounds of the interests of justice would be highly exceptional.

The OTP has indicated that this last inquiry does not include matters affecting international peace and security, which (in its estimation) are within the province of the Security Council. The OTP has also emphasized that there are no other statutory criteria underlying the decision to undertake a full-scale investigation:

Geo-political implications, or geographical balance between situations, are not relevant criteria for determining whether to open an investigation into a situation under the Statute.

In its policy papers, the OTP has also made clear that it need not prosecute “all sides” in order to address perceptions of bias. Rather, the OTP is to focus on those most responsible for the most serious crimes.

This strictly sequential approach to preliminary examinations is not dictated by the ICC Statute. So, even if the admissibility factors would dictate the closure of a preliminary examination, the Prosecutor will often make a finding with respect to subject-matter jurisdiction, which can cause states under review a fair amount of angst.

With the closure of the Comoros/Cambodia/Greece matter, eight preliminary examinations remain underway:

Phase 2 (subject matter jurisdiction): Honduras, Ukraine, and Iraq.

Phase 3 (admissibility): Afghanistan, Colombia, Georgia, Guinea, and Nigeria.

In four prior situations, and based upon the above criteria, the decision was made not to proceed with an investigation: Venezuela, Republic of Korea, Iraq (since re-opened), and Palestine. There are no strict timelines for completing the preliminary examination process; some situations have been under consideration for a decade given the nature of the inquiry, the complexity of the issues involved, and the scope and pace of national proceedings (as in Colombia).

Factual Background

By way of background (our fuller timeline with links to the below events is available here), the Palestinian National Authority (PNA) governs the Gaza Strip and the West Bank pursuant to the 1993 Declaration of Principles on Interim Self-Government Arrangements (Oslo Accord I) between the Palestine Liberation Organization (PLO) and Israel. Following elections in 2006, Gaza fell under the control of Hamas, a Palestinian Islamic socio-political party and paramilitary force that is considered by some to be a terrorist organization. Following this election, Israel and Egypt established a blockade around Gaza. Formal ceasefires, and informal “lulls” in fighting between Hamas and Israel, were shattered over the next two years by the launch of mortars and rockets from Gaza into Israel by Hamas and other Palestinian factions.

In response to escalating rocket fire from Gaza, suggestions that a tunnel into Israel was under construction, and evidence of weapons smuggling into Gaza, Israel launched Operation Cast Lead in December 2008 with air strikes in the Gaza Strip. On January 3, 2009, the Israeli Defense Forces (IDF) began the second stage of Operation Cast Lead with a ground offensive; Israel also imposed a naval blockade. The third stage of Cast Lead commenced on January 11, 2009, when IDF ground forces entered Gaza City. After another week of combat, the IDF declared a unilateral ceasefire on January 17 and withdrew its forces. The Palestinian Ministry of Health, a Gaza governmental office, puts the death toll of Operation Cast Lead at over 1300 Palestinian individuals, although other estimates are lower. There were 13 confirmed Israeli deaths (four from friendly fire). The reported use by Israel of air burst white phosphorus, an incendiary agent used to create smokescreens, over populated areas has drawn particular criticism.

On January 22, 2009, the PNA lodged an Article 12(3) Declaration with the Registrar of the ICC stating that it recognizes:

The jurisdiction of the Court for the purpose of identifying, prosecuting and judging the authors and accomplices of acts committed on the territory of Palestine since 1 July 2002.

Such a declaration is not the equivalent of a referral of a situation to a Court, but rather satisfies the preconditions for jurisdiction contained in Article 12. Over the years, the OTP has reportedly received over 400 communications concerning crimes allegedly committed in the Palestinian territories. As is customary, the OTP opened a preliminary examination into the situation to consider whether there was a reasonable basis to proceed with a full investigation.

On September 25, 2009, a U.N. Fact Finding Mission on the Gaza Conflict issued the so-called Goldstone Report, named after Richard Goldstone, the Chair of the Commission and the first Chief Prosecutor of the ICTY. The Report concluded that both sides committed international crimes during Cast Lead and recommended that the Security Council refer the situation to the ICC if the domestic authorities did not undertake credible investigation into the crimes committed. Israel did conduct its own investigations into the conduct of its troops and took various forms of legal and disciplinary action.

In May 2010, activists and NGOs launched a “Freedom Flotilla” to challenge the naval blockade and deliver humanitarian aid to the Gaza Strip. The ships of the flotilla included the MV Mavi Marmara, which was registered in the Union of Comoros. It has been speculated that the vessel was reflagged just prior to the Freedom Flotilla operation in order to be able to trigger ICC jurisdiction. Along with Jordan, Tunisia, and Djibouti, the Comoros is one of the few League of Arab States members that has ratified the ICC Statute. Other ships involved in the flotilla were registered in ICC member states—Greece and Cambodia—and in non-member states (including Turkey and the United States).

Although the precise facts remain in dispute, when ships of the flotilla refused to reroute to the Port of Ashdod for inspection, they were boarded on May 31, 2010, in international waters by Israeli naval forces. On the Mavi Marmara, Israeli forces faced resistance from a group of activists. Nine activists (all Turkish nationals, including one dual Turkish-U.S. national) were killed, and ten Israeli forces were wounded. These events formed the subject of several commissions of inquiry by, inter alia: the UN Secretary-General (the Palmer Report), Israel (the Turkel Report and Lindenstrauss Report), Turkey, and the U.N. Human Rights Council. The reports reach differing conclusions as to when lethal weaponry was employed and by whom.

Back at the Court, in April 2012, the prior Chief Prosecutor, Luis Moreno Ocampo, in one of his final acts in office, finally issued his decision declining to move forward with an investigation into events on the Palestinian Territories in connection with Cast Lead on the ground that he was not empowered to determine whether Palestine is a “state” within the meaning of Article 12(3). He explained that

it is for the relevant bodies at the United Nations or the Assembly of States Parties to make the legal determination whether Palestine qualifies as a State for the purpose of acceding to the Rome Statute and thereby enabling the exercise of jurisdiction by the Court under article 12(1).

Following an April 2013 speech in Paris, Chief Prosecutor Fatou Bensouda was asked about the potential membership of Palestine in the ICC. She indicated that now that the General Assembly has weighed in on Palestinian statehood, it is for the Palestinians to return to the ICC if they are interested in the Court moving forward. In her estimation, any acceptance of jurisdiction would extend back only to November 2012 (the date of the U.N. General Assembly vote upgrading Palestine’s status within the United Nations) and not earlier.

This brings us to the present matter. In May 2013, the Union of the Comoros referred the situation involving crimes allegedly committed by Israel on the flagship MV Mavi Marmara. It included within the referral the situation on the territory of other states parties whose flagships were also involved in the Gaza Freedom Flotilla (Cambodia and Greece). This marked the first referral of a situation by a State Party involving alleged crimes committed on the territory of another State Party.