Across the Middle East, there is concern about the nuclear deal with Iran. By releasing frozen assets and removing economic sanctions, the deal seems to facilitate renewed aggression. Won’t that encourage more violence from Iranian terror proxies, like Hezbollah and Hamas? The international community is preparing its response.
While the world’s attention is focused on the Western settlement with Iran, the International Criminal Court in The Hague announced a decision on July 16 that plants its own marker in the Middle East. The ruling by the Pre-Trial Chamber instructed the ICC prosecutor to reconsider her decision not to prosecute Israelis for the violence associated with Israel’s May 2010 seizure of the Mavi Marmara, when that ship sought to challenge Israel’s naval blockade of Gaza.
The case was “referred” to the ICC prosecutor in 2013—but not by “Palestine,” where the ship was bound, not even by Turkey, where the so-called Humanitarian Aid Flotilla for Gaza was organized and where many of the affected “passengers” held citizenship. Instead, the dispute was referred by the Union of Comoros, which happened to be where the ship was registered. This island state in the Indian Ocean, with less than a million people, offers a flag of convenience to much international shipping and apparently lends its flag to legal actions, too.
The case was remarkable and disturbing for many reasons. The prosecutor (currently Fatou Bensouda of Gambia) had decided that, even if Israeli actions were unlawful, they did not amount to such “grave breaches” of international standards as to warrant international prosecution. The court rejected the prosecutor’s reasoning and demanded a reconsideration of the decision not to prosecute.
The ICC statute does make provision for such appeals of decisions by the prosecutor. But if there has been a previous case where such an appeal was upheld, it was not noted by the court’s opinion. As the dissenting judge on the three-judge panel explained, the wording of the ICC statute seems to vest considerable discretion in the prosecutor, as is logical: Judgments about the “gravity” of an offense necessarily hinge on elements of context and circumstance not easily captured by abstract formulas. As the dissent also noted, past cases brought by the prosecutor had involved hundreds or thousands of deaths, while this episode involved 10 fatalities.
The second remarkable thing was the way the court’s majority dealt with the context of the episode—which was to ignore it. The dissent cited an array of authorities on blockade law, as well as a report for the secretary general of the United Nations prepared by the former prime minister of New Zealand. On these grounds, Judge Peter Kovacs concluded that “Israeli forces had a right to capture the vessel in protection of their blockade,” and in the circumstances “the IDF acted out of necessity.” He also noted that passengers on the Mavi Marmara “attempted to impede the [Israeli] soldiers with use of their fists, knives, chains, wooden clubs, iron rods, and slingshots with metal and glass projectiles” and initially “attacked” and “captured” three of the soldiers in the boarding party. The dissent cited for this finding the report of the Israeli judicial inquiry, which found that the force exercised by the IDF was not excessive in the circumstances.
The majority opinion found none of this background worthy of comment or even acknowledgment. It did not so much as mention the fact that Israel had conducted its own investigation. Yet the ICC statute indicates that the ICC has jurisdiction only where crimes have not been adequately investigated and appropriately punished by national authorities.
The most remarkable aspect of the opinion, however, was the court’s own analysis of “gravity.” The court argued that the prosecutor was wrong to minimize the “gravity” of the episode. It was “simplistic” for the prosecutor to claim that “the identified crimes” had “insufficient gravity” given “the international concern caused by the events at issue which . . . resulted in several fact-finding missions, including by the U.N. Human Rights Council.” In effect, the court argued that if Israel is denounced by the U.N. Human Rights Council, the ICC prosecutor should see herself as its designated enforcement arm.