ICC Analysis on the Flotilla Incident–Fair & Balanced?

The ICC Prosecutor has now posted her full report and statement on the closure of the “Freedom Flotilla” preliminary examination (see our prior coverage here). It contains a careful consideration of the facts in the Prosecutor’s possession in light of the Article 53 standard governing the transition from a preliminary examination to a full-scale investigation. There is no question that the result is the right one, particularly given the closure of the first Iraq preliminary investigation which involved a similar number and type of alleged crimes (war crimes). That said, the blogosphere is already alive with criticism about some aspects of the Prosecutor’s reasoning. In particular, the determination that the conflict in question is an international one as a result of Israel’s continued occupation of Gaza has generated controversy in light of Israel’s (contested) claim that its 2005 Disengagement effectively ended the occupation. Indeed, the analysis here is more detailed than would seem necessary in light of the question presented, suggesting that the Office of the Prosecutor (OTP) is signaling how it would approach ongoing potential crimes if and when the Palestinians re-engage with the Court. Much could hinge on this characterization; the ICC Statute contains more crimes that can be charged when the conflict is deemed international (as opposed to non-international), including potential crimes associated with the settlements in occupied territory and the use of disproportionate force. The report’s conclusion that the activists on board the Mavi Marmara would likely not be considered to have been taking a direct part in hostilities (in part because the flotilla was not specifically designed to support one party to the armed conflict as against another) is also likely to generate controversy in some quarters.

The Israeli Ministry of Foreign Affairs in a statement indicated that the preliminary examination—which in its estimation was premised on a politically-motivated referral and wasted the “precious time and resources” of the Court—should never have been opened in the first place. (In fairness, Article 53 of the Statute requires the Prosecutor to open an investigation in connection with a state referral unless the enumerated factors indicate that there is no reasonable ground to proceed). Although the MFA generally welcomed this development, at the same time, it took issue with some of the Prosecutor’s legal reasoning and “incautious statements.” Not surprisingly, it criticized the unwillingness of the Prosecutor to engage the question of self-defense, particularly given that two investigative reports (the U.N. Secretary General’s and Israel’s, see below) found that the IDF forces were confronted with “organized, pre-meditated and lethal violence.” Moreover, the MFA was of the opinion that the OTP should also have addressed the issue of complementarity, which would have enabled the Prosecutor to take note of internal investigative mechanisms.

This latter complaint stems from a perceived flaw in the way in which the OTP has undertaken its preliminary examinations. As discussed in a prior post, the OTP trots through Article 53 in a sequential fashion, although nothing in the Statute requires this methodology. Along the way, the OTP makes—and often publishes—conclusions on subject matter jurisdiction (e.g., that there are reasonable grounds that a national of state X committed crime Y) before considering potentially mitigating factors associated with admissibility (gravity and complementarity, i.e., the existence of genuine national proceedings with respect to crime Y). The result is that states find themselves in a position of having their nationals accused of committing crimes long in advance of having the OTP discuss the state’s response thereto. Because the Statute does not require such a sequential approach (or the publication of preliminary and incomplete analyses), the OTP could just as easily conduct a gestalt (a.k.a. holistic) methodology, considering all relevant factors simultaneously and refraining from publishing partial conclusions.

Below is a summary of the 61-page report, with reference to some items of note, these key decision points, and interesting lines of reasoning: 

Sources of Information: In the preliminary examination phase, the Office of the Prosecutor (OTP) is not empowered to employ its Article 54 investigative powers. Rather, it is limited to reviewing information in its possession and from open sources. Only the Comoros, through its Turkish law firm (which was apparently retained “in collaboration with the Government of Turkey”), provided information to the Prosecutor in connection with the referral. Neither Turkey nor Israel responded to invitations to supply information regarding the events in question. The OTP also received information from the controversial organization (Humanitarian Relief Foundation—IHH) that helped to launch the flotilla campaign (it owns the Mavi Marmara). The OTP also considered the four reports generated by the various investigative bodies convened to examine the incident: the fact-finding mission deployed by U.N. Human Rights Council, the U.N. Secretary General’s panel of inquiry (“the Palmer Report”); the Turkish commission of inquiry; and the Israeli investigative commission (“the Turkel Report”)).

Territorial Jurisdiction: The Prosecutor found the Court had presumptive jurisdiction over conduct committed on board three vessels within the flotilla that were registered within ICC state parties: The Mavi Marmara (Comoros), the Rachel Corrie (Cambodia), and the Eleftheri Mesogios/Sofia (Greece). Although Israel is not a state party, the Court has jurisdiction over conduct committed on the territory of states parties—including on vessels registered to state parties—pursuant to Article 12(2)(a) of the ICC Statute. The Prosecutor’s report indicated, however, that the degree of resistance experienced, and the concomitant level of force used by IDF soldiers, on the other vessels were significantly lower on the other two ships as compared to the Mavi Marmara. Indeed, the departure of the Rachel Corrie (named after a U.S. activist killed by an Israeli bulldozer while protesting settlements in Gaza) was delayed and was intercepted on June 5, 2010, without incident.

Temporal Jurisdiction: All three states parties with flag vessels involved in the flotilla had ratified the ICC Statute in advance of the May 2010 events, so temporal jurisdiction was satisfied. In her report, the Prosecutor noted that it was only the events of May 31, 2010, and only the events that occurred on the three vessels, that were referred to her office. This excluded from consideration events that occurred after passengers were removed and the larger conflict(s) in which the flotilla was a part.

Conflict Classification: The Prosecutor determined that the situation would be analyzed as part of an international armed conflict based on the occupation of Gaza. This is despite Israel’s arguments that ceased occupying that territory following its “Disengagement” in 2005. The report cites established law that an occupation exists whenever a state exercises “effective control” over territory.

Occupation: The report cites a number of sources in support of its conclusion as to the continuing occupation: the ICJ’s 2004 Advisory Opinion on the Wall as well as the “prevalent view within the international community,” as expressed in U.N. General Assembly resolutions, the International Committee of the Red Cross, and elsewhere. This view is premised on the “scope and degree of control that Israel has retained over the territory of Gaza following the 2005 disengagement.”

Applicable War Crimes: Within this framework, the Prosecutor concluded that there is a reasonable basis to believe that war crimes were committed on board the Mavi Marmara during the IDF raid. The war crimes under consideration were:

  • wilful killing,
  • inhuman treatment,
  • wilfully causing serious injury,
  • extensive destruction of property not justified by military necessity,
  • intentionally directing attacks against civilian objects,
  • intentionally directing attacks against civilians or humanitarian personnel,
  • intentionally launching an attack with the knowledge that such attack will cause incidental loss of life or injury to civilians, and
  • committing outrages upon personal dignity.

The report indicates that there are reasonable grounds to believe that only three of these crimes—wilful killing, committing outrages upon personal dignity, and wilfully causing serious injury—were potentially committed during the interdiction and raid of the Mavi Marmara.

The Prosecutor found that the prohibition on wilful killing would be relevant to the deaths of the 10 activists on board the Mavi Marmara (which included one U.S. citizen). The activists were killed by IDF soldiers who fast-roped on to the vessel from a helicopter after an attempt to board from speedboats was repelled, although the report acknowledges that there is considerable uncertainty around what exactly happened. The report does conclude, however, that it does not appear that the resistance by the passengers, deemed civilians, would amount to directly participating in hostilities, which would remove the victims’ immunity from attack. Because the IDF attack was directed against the vessel and not the passengers per se, there was no intentional attack on civilian persons.

The prohibitions on inhuman treatment and outrages upon personal dignity were raised with respect to the treatment of the passengers after the ship was escorted to the port of Ashdod. (There were allegations that the passengers were subject to harassment, denied food/water/facilities/medical treatment, placed in overly tight handcuffs…). That said, the report concludes that the allegations in question did not rise to the level of “severe” pain or suffering necessary to fall within the scope of the prohibition of inhuman treatment. It was determined that the crime of outrages upon personal dignity, which addresses humiliating and degrading treatment, better captured the conduct in question.

The war crime of wilfully causing serious injury was relevant to the 50-55 passengers who were seriously injured during the interdiction.

There was insufficient information to suggest that the property crime had been committed, although there some passengers’ personal property was improperly appropriated by IDF soldiers. (And, indeed, an IDF soldier was prosecuted for taking a laptop and gaming console from the ship).

When it comes to intentionally launching an attack in the knowledge that it would cause incidental loss of life or injury that would be clearly excessive in relation to the concrete and direct overall military advantage, the report noted that the Rome Statute employs the modifier “clearly” before “excessive”, indicating that “a value judgment within a reasonable margin of appreciation should not be criminalized, nor second guessed by the Court from hindsight.” The military necessity of defending the blockade was clear, and so the inquiry turned on proportionality and whether the operation was intentionally launched with the knowledge that it would be clearly excessive to this necessity. The report concludes that IDF forces and Israeli authorities could not have reasonably foreseen what level of violence would be necessary to effectuate the interdiction given the information available to the IDF at the time (that “peace activists” might resist interdiction), and so the crime is not applicable to the facts as they are known.

With respect to the crime of intentionally directing attacks against personnel or objects involved in a humanitarian assistance mission, the report concludes that the flotilla did not constitute a “humanitarian assistance mission,” particularly given that it did not have the consent of all the parties to the conflict, it was prepared to use a certain degree of force to gain access to its target population, not all the ships (including the Mavi Marmara) were actually carrying humanitarian supplies, the flotilla organizers did not accept alternative arrangements for the delivery of the supplies (via the land crossing or with supervision), and the flotilla was motivated by political objectives as well as humanitarian ones.

Significance of Classification: Conflict classification is particularly relevant because Article 8 of the ICC Statute lists many more war crimes in connection with international armed conflicts (34) as compared with non-international armed conflicts (16). Most importantly, the crime of

intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects … which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated

(Article 8(2)(b)(iv)) is not a prosecutable war crime within a NIAC.   Nor is the crime of undertaking the

transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory

which is not relevant to the flotilla incident but might be in play were the Palestinians to ratify the Statute. That said, the report indicates that the Prosecutor has not reached a conclusive view on conflict classification and suggests that the outcome of the preliminary examination analysis would have been the same were the situation analyzed as a NIAC between Israel and Hamas.

Nexus to Armed Conflict. The conduct giving rise to a war crimes charge would need to have a nexus with the specific armed conflict. Because the incident in question took place in the context of Israel’s occupation of Gaza and the naval blockade, this nexus was deemed established.

The Legality of the Blockade: The Prosecutor fails to take a position on the legality of the naval blockade itself, although she indicates that the forcible boarding of the civilian vessels (the Mavi Marmara and the Eleftheri Mesogios/Sofia) would be analyzed as the potential war crime of “intentionally directing” an attack “against civilian objects” (Article 8(2)(b)(iv)) if the blockade were deemed unlawful. The report notes that if the blockade were lawful, than Israel would have been entitled to defend the blockade from vessels seeking to breach it, because the vessels would lose the protection from attack to which they would otherwise be entitled. (Blockades are extensively discussed in the San Remo Manual on International Law Applicable to Armed Conflicts at Sea, which is cited in the report). Blockades may also give rise to war crimes charges if they cause the starvation of the civilian population, but the Prosecutor does not invoke this rule in her report.

Self-Defense: The report also notes that the lawful use of force in individual self-defense constitutes a ground for excluding criminal responsibility under the ICC Statute (Article 31(c)). In the recitation of the facts, the report noted that the IDF soldiers were apparently attacked by a large group of passengers wielding various makeshift but by no means trivial weapons, resulting in injuries to nine IDF members. Statements embodied in prior investigative reports indicated that the IDF members were surprised by the level of resistance and violence engaged in by the passengers. This defense, however, was not deemed relevant at the preliminary examination phase when an entire situation is under consideration (as compared to the investigations phase when particular crimes and potential defendants are the focus of the inquiry). The report does note, however, that even taking into account the fact that the passengers attacked IDF members, the use of force “appears to have been excessive” given the facts as they have been adduced (e.g., one of the deceased apparently was filming the events in question).

Crimes Against Humanity: The report concluded that the prohibition against crimes against humanity was inapplicable, given that the raid was not itself a widespread or systematic attack against a civilian population; nor was it committed as part of such an attack. This determination is important, because there was some speculation that the flotilla interdiction could be considered part of a larger attack against a civilian population that also included Operation Cast Lead (2008-9), Operation Pillar of Defense (2012), and/or Operation Protective Edge (2014)—all launched in Gaza—even though those larger operations would fall outside of the ICC’s jurisdiction.   Elsewhere in the report, the Prosecutor acknowledges that the Court does not have jurisdiction over the broader context of the Israel-Hamas or Israel-Palestine conflicts.

Gravity: As discussed, once presumptive jurisdiction is established, the OTP will consider the admissibility of the situation in question. It is here that the preliminary examination stalled. In particular, and as originally reported, the Prosecutor determined that even assuming a reasonable basis to believe that war crimes were committed during the interception of the Mavi Marmara, the acts in question, and potential cases that they would generate, would not satisfy the requisite gravity threshold (At the preliminary examination phase, gravity is assessed with respect to potential cases that would emerge from the situation as a whole). The report also took note of the gravity threshold built into the chapeau of the war crimes provision (Article 8(1)). Although the report noted that this “is not a prerequisite for jurisdiction,” it does “provide statutory guidance indicating that the Court should focus on cases” involving war crimes committed “as part of a plan or policy or as part of a large-scale commission of such crimes”.

Complementarity: Because step one of the admissibility analysis was dispositive, the report does not consider step 2, complementarity. This means that the Prosecutor does not present any information on Israeli investigations, prosecutions, or disciplinary action following the incident.

Prospects of Appeal: Comoros, as the referring state, is entitled to request the Pre-Trial Chamber to review the Prosecutor’s decision not to proceed pursuant to Article 53(3)(a) of the Statute. 

About the Author(s)

Beth Van Schaack

Fellow at the Center for Advanced Study in the Behavioral Sciences (CASBS) at Stanford University, Former Leah Kaplan Visiting Professor of Human Rights at Stanford Law School, Former Professor of Law at Santa Clara University School of Law, Former Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department All views are her own. Follow her on Twitter (@BethVanSchaack).