The ICC Prosecutor should Reject Judges’ Decision in Mavi Marmara

The International Criminal Court (ICC) was established 13 years ago to prosecute, in the words of the Court’s Preamble, “the most serious crimes of concern to the international community as a whole,” including genocide, crimes against humanity, and war crimes. Given that the ICC is designed to be a Court of last resort with limited resources, its Statute quite sensibly requires it to focus on those cases that meet a “sufficient gravity” test, assessed both quantitatively and qualitatively, and gives the Prosecutor, the sole actor in the Court with a view on all of the cases, the primary role in applying this test at the investigation-opening stage. To date, this mechanism has worked smoothly, resulting in few disputes or controversies.

Last week, however, a panel of judges on the ICC’s Pre-Trial Chamber (PTC) issued a decision that risks undermining both the test and the Prosecutor’s role in applying it. The Prosecutor should attempt to appeal the decision or should simply consider it, reject it, and move on, as is her prerogative to do.

The dispute arose as the result of a request by the Union of Comoros to investigate Israel’s interception on May 31, 2010 of a humanitarian aid flotilla bound for the Gaza Strip (just in case you’d like to learn more about the Comoros, I’ve provided a link to the country’s web-page). One of the eight ships in the flotilla happened to be the Mavi Marmara, registered in the Comoros, a State-Party of the ICC (thus creating a jurisdictional hook for the Court). When the Israeli Defense Forces (IDF) acted to stop the flotilla, events on the Mavi Marmara turned violent, resulting in the killing of ten passengers, injuries to 50-55 others, and possibly hundreds of instances of outrages upon personal dignity (or torture or inhuman treatment, depending on whom you ask).

In November of last year, the ICC Prosecutor decided against opening a formal investigation, concluding that it would not likely result in a case that could satisfy the Court’s “gravity” requirement. But last week, two judges of the PTC disagreed and ordered, over a dissent from the third judge on the panel, the Prosecutor to “reconsider” her decision, which is the most that the panel was empowered to do under the Statute. So what happened, where is this headed, and what is the significance for the Court? 

The Rome Statute distinguishes between “situations,” which are the various conflicts the Court investigates, and “cases,” which are the individual charges it brings within a situation. Before opening an investigation into a situation, Article 53(1) of the Rome Statute requires the Prosecutor to determine, among other things, that a “case” arising out of the investigation would be “admissible” under Article 17 of the Statute. For “cases” to be admissible under Article 17, it must be established that they are not being investigated or prosecuted by a state authority (or are not being investigated or prosecuted in good faith), and that they meet the “gravity” requirement.

It seems that there should be a clear distinction between situational gravity and case gravity, and Kevin Jon Heller has made a strong argument to that effect, but in fact the Statute ties the two concepts closely together: the language of Article 53(1) is clear that to open an investigation into a situation, the Prosecutor need only establish that one case likely to arise out of the investigation will meet the gravity threshold. The test is an expansive one, therefore, and it should be because it impossible to envision all the ways atrocity investigations and cases might arise. There could one day be a single-episode situation that would be sufficiently grave to warrant opening an investigation (think: Srebrenica). However, the reality is that ordinarily where there exists one “case” within a situation that satisfies the “gravity” requirement, there will be many others as genocide, crimes against humanity and war crimes do not usually occur as solo events. The Mavi Marmara episode is unusual because the Court’s jurisdiction is limited to the events occurring on that vessel, registered as it was to a State-Party.

If situational gravity can be established through case gravity (and let’s assume for the sake of argument that it can), the test still has to mean something, and here is where I think the PTC lost its way. Gravity is assessed both quantitatively and qualitatively, considering the nature, scale, and manner of commission of the alleged crimes, as well as their impact. The majority of the PTC asserted that this evaluation is not a matter of “discretion” by the Prosecutor, but instead “require[s] the application of exacting legal requirements.” (Para. 14). But this approach makes the exercise seem all too mechanical, failing to recognize that in fact it requires substantial evaluation and most importantly judgment. Further, the majority insufficiently appreciated that it is the Prosecutor who is best situated to make the gravity assessment, given her experience and role in developing evidence and building cases as well as her perspective on all of the cases before the Court, which is why her determination is granted so much deference under the Statute at the investigation-opening stage.

In this case, there is no question that the scale of the alleged war crimes is relatively limited, both in terms of numbers and duration. That is not to minimize the events in question, which were indisputably tragic by all accounts. But the Rome Statute does not give the ICC jurisdiction over all crimes that fall within its jurisdiction, but only those that are sufficiently grave. Here, that threshold is not met quantitatively. But relatively low-level cases can still satisfy the gravity requirement if there are sufficient qualitative considerations. Thus the ICC prosecuted an attack on a base of African Union peacekeepers in Sudan, resulting in twelve deaths and pillaging, because of the significance of the target and the impact on peacekeeping operations.

In the Mavi Marmara case, the Prosecutor found no such qualitative considerations to satisfy the gravity requirement. In making this determination, the Prosecutor considered the reports of four separate commissions that investigated the incident at the behest of the UN Human Rights Council, the UN Secretary-General, and the governments of Turkey and Israel, as well as information provided by the Comoros. In rejecting the Prosecutor’s analysis, the majority of the PTC speculated on the basis of limited pieces of evidence that an investigation might disclose qualitative considerations satisfying gravity, and that therefore an investigation should be opened.

So, for example, the Prosecutor concluded based on the totality of the evidence available to her that there was insufficient information to show that the alleged crimes were systematic or the result of a deliberate plan or policy to attack civilians. This point is critical because the existence of a plan or policy would also indicate high-level involvement, all of which could go a long way toward establishing qualitative gravity. In response, the majority of the PTC seized on some evidence that the IDF used live fire before boarding the Mavi Marmara to conclude that an investigation is required to resolve “whether there was a prior intent and plan to attack and kill unarmed civilians” (para. 34). But the existence of “some evidence,” considered out of context and in isolation, is not a reasonable basis to conclude that gravity might be satisfied. The Prosecutor considered this evidence, found it to be “highly contested,” and analyzed it in relation to all of the other available evidence resulting from the numerous inquiries. She concluded that while there may be evidence of instances of excessive force by IDF soldiers attacking the vessel, there was insufficient evidence of a plan or policy to attack civilians. The PTC should have given deference to this considered judgment over its own speculative analysis of selective pieces of information.

The decision of the majority of the PTC is riddled with this kind of mistaken reasoning. While the Prosecutor assessed all of the available evidence to determine what it reasonably shows, and whether gravity would then be satisfied, the majority of the PTC cherry picks pieces of evidence here and there to insist that, because the evidence is disputed, an investigation is required. This approach would essentially foreclose the Prosecutor from exercising her function of analyzing and assessing the available evidence and would require her to open an investigation whenever there exists a scintilla of evidence, no matter how persuasive, that might possibly satisfy the requirements of Article 53(1).

Because gravity is ordinarily not controversial, this decision is likely to be idiosyncratic. It is only the second time that the Office of the Prosecutor declined to open an investigation on the basis of gravity (the first was Iraq), and the first time that the Prosecutor’s decision not to investigate has been challenged by a State Party. But to insure that the decision does not have a far-reaching impact, the Prosecutor should seek an appeal or should consider and reject the decision. An appeal might be difficult because the Appeals Chamber has consistently considered Article 82(a), the provision that allows appeals of admissibility decisions, to require a final decision on the admissibility of a case before there can be an appeal, and that has not occurred here. An even better course would be for the Prosecutor to announce that she has reconsidered her decision and has again concluded that gravity has not been satisfied. Article 53(3) permits a referring State to seek a review by the PTC of the Prosecutor’s decision not to investigate, as the Comoros has done here, but the PTC may only “request the Prosecutor to reconsider that decision;” it does not have the power to reverse the Prosecutor’s decision or to order her to investigate. In other words, the Statute includes a role for the PTC to conduct a review and give its views, but it leaves the final decision with the Prosecutor. There is no reason for the Prosecutor to defer to the majority’s decision in this case. She should assert her role, preserve the integrity of the gravity test, and reject the PTC decision. 

About the Author(s)

Alex Whiting

Professor of Practice, Harvard Law School; former federal prosecutor at the Department of Justice and the U.S. Attorney's Office in Boston; served as Investigations Coordinator and Prosecutions Coordinator at the International Criminal Court. Follow him on Twitter (@alexgwhiting).