The Comoros Referral to the ICC of the Israel Flotilla Raid: When a 'situation' is not really a 'situation'

As has been widely reported already, The ICC OTP announced today that it had received a referral from the Comoros "in relation to the event of May 2010 on the vessel Mavi Marmara". You will recall that this boat was part of the group of boats that tried to reach Gaza at the time and which were boarded by the Israeli army, resulting in a number of deaths and injuries.

The usual suspects of the blogosphere have already put up excellent posts on this development: Kevin Heller (here and here), Dapo Akande (here) and William Schabas (here). They already covered a number of more political issues which I won't delve into here, such the perception issues that would flow from the initiation or not of a formal investigation among African States and the international community, the alleged anti-palestinian bias of the ICC OTP or the apparently poor timing of the referral given that Israel and Turkey seem to be getting close to finishing their negotiations on the incident.

I also won't go discussions of certain legal questions that come up in relation to this referral. I would tend to agree with Kevin's evaluation that this would not meet the gravity threshold under Article 17, especially given the response given by the Prosecutor in the Iraq communications. However, I'm wondering if the Abu Garda case, which concerned a single attack on a peace keeping compound, and where it was considered that the gravity threshold was met, is not a indication to the contrary.

Also, I find the referral thoroughly sloppy on the legal characterization of the facts as war crimes and crimes against humanity. It unconvincingly tries to link the events to the Gaza situation (discussions on the Palestinian declaration to the ICC in 2009 are for me beside the point here) and there is a meager two paragraphs on crimes against humanity that would be laughable if not present in a formal State referral to the ICC.

Finally, as an aside, I think too much is being made of the link between the fact that Comoros is the State of registration of the Mavi Marmama and the fact that Comoros is doing the referral, as if the former implied the latter. However, legally, there is no need to make that link. What's important is that the alleged crimes were committed on the territory of a State Party, but after that, any State Party could have made the referral.

But the main point I want to focus on is whether this is really a referral of a "situation" as required by the ICC Statute. Both Dapo and Kevin make strong cases on the fact that this is indeed a "situation", because specific cases have not been referred (which would not be allowed) and because it is not an issue that potentially only one crime has been committed (I'm not entirely sure why both of them make this last point so vocally, as even the referral suggests, even unconvincingly a number of alleged crimes falling within the jurisdiction of the Court...). I'm still not convinced for the following reasons.

The Lubanga Sentence (Part 2): Why the Ocampo Bashing is getting old

There is no doubt that Luis Moreno Ocampo, the recently departed ICC Prosecutor, was to ICL commentators what George Dubya Bush was to liberal americans, an endless provider of material to write about. I have myself blogged extensively on his gaffes, legal blunders and media outings over the years. Ocampo has also received a number of significant rebukes from ICC Judges in a number of decisions, not least in the Lubanga case and, with the Sentencing Decision that was handed down today, The Trial Chamber made sure not to miss this new, and probably last, opportunity to pile things on him again. But I'm wondering if the Ocampo bashing is not getting a little old. I don't think he can be blamed for everything that went wrong in the Lubanga trial, and it should not mask the fact that the Judges did not take the appropriate measures to ensure that he stayed in line. This is true for both aspects of the Chamber's consideration of prosecutorial conduct.

• The question of sexual violence

First of all, in relation to Ocampo's stance on Sexual Violence, the Chamber has the following to say (§60):

Sentencing Taylor, Suffering Victims and Collective Crimes: The Limits of International Criminal Law

Cross-posted on Opinio Juris

On the 30^th of May, the SCSL sentenced Charles Taylor to 50 years in prison. The sentencing judgment raises a number of interesting issues. some commentators, such as William Schabas, or on Opinio Juris, Marina Aksenova, have discussed the length of the sentence, finding it either too long, or adequate, depending on the preferred objectives of criminal justice (rehabilitation, retribution, deterrence). Wherever one stands on this issue, I think that, despite it being common practice in a number of international judgments, handing down a single sentence for the entire array of crimes convicted, rather than having them individualized does not help achieve the goals one ascribes to sentencing. Indeed, how can there be deterrence, if there is no knowledge that a specific crime for which a person is convicted carries a specific sentence? There is also a problem of predictability, because we don’t know what the judges would have decided if Taylor had for a reason or another been acquitted on one of the counts. The only thing that can be taken out of the sentencing is that it is condemnable to generally participate in the events, and the fact that a couple of crimes more or less took place in the course of things becomes irrelevant.

Which brings me to the main point I want to address here: the limits of criminal law in addressing mass atrocities, both because of the question of gravity and because of the collective dimension of the acts.

• The question of gravity

I have often commented here on the difficult assessment of the criteria of gravity in the ICC framework. In a nutshell, given the fact that the ICC, and international tribunals in general, are competent to prosecute the gravest crimes of interest to the international community as a whole, how does one define an additional notion of gravity within this context? This is made even more complicated because most people refuse to open the Pandora’s Box of a hierarchy of crimes, which would be reflected in sentencing. But if all international crimes are equally grave, then how do you justify given a higher sentence for one of them rather than the other? It essentially boils down the moral outrage of the individual judges. The Taylor sentencing judgment illustrates this point.

Abu Garda: Justice follows its course

Given my recent travels, I didn't have time to comment on the decision by the ICC Pre-Trial Chamber I not to confirm the charges against Abu Garda.

It's a fairly momentous decision from a symbolic point of view. It crowns a series of debatable decisions on the part of the prosecutor in the most emphatic way. This prosecutor really seems to make everybody unhappy. In relation to my previous post on the ISA conference, it was funny to see that despite all the inter-disciplinary disagreements on matters relating to the International Criminal Court, everybody seems to agree to criticize Ocampo... Beyond that, I think it is in fact a good thing for the legitimacy of the Court that it accepts to not go to trial. I don't recall this happening before in international justice. Arguably, the ICC did so on a fairly low profile case, where no media-friendly crime is involved, but still...

From a legal point of view, the decision is not that surprising when you read through it. The OTP really seems to have butchered the case. Apparently, the Prosecution cannot persuasively show that Abu Garda participated in any of the meetings where the attack was planned, nor can it establish that he actually physically took part in the attack. Apparently, the OTP documents claim that he was there and not there... So given this lack of evidence, at least that's how the PTC presents it, it only seems normal that the confirmation of charges was denied.

This being said, I had a couple of extra comments. The first one relates to the nature of the confirmation of charges decision. The Chamber reminds us "that the confirmation hearing is neither a trial before the trial nor a mini-trial". But it is difficult to see how it is not. PTC I seems to engage in the sort of activity that is typical of a trial phase. More particularly, it systematically does an assessment of the credibility of witnesses in comparison with other witnesses. It also engages into a very precise legal analysis of the definition of the crime and its application to the specific AMIS mission, which turns out to be useless at the end given that they can't link Abu Garda to the events anyway (Judge Tarfusser gave a separate opinion on this point). As I've already said elsewhere, the multiplication of procedural steps at the ICC and the correlative multiplication of burdens of proofs makes the whole process a little confusing in my opinion, and the only benefit initially proposed for this, namely speeding things up, has noticeably failed until now. So I remain skeptical about the ICC pre-trial mechanisms.

The second point relates to gravity, something I've already mentioned on this blog before. Up to now, the case-law seemed to have developed in the direction of the judges choosing to ignore the issue of the article 17 "sufficient gravity" criteria. In this case, PTC I did decide to consider it. It acknowledges that

"the gravity threshold contemplated therein is in addition to the Statute drafters' careful selection of the crimes included in articles 6 to 8 of the Statute. Hence, the fact that a case addresses one of the most serious crimes for the international community as a whole is not sufficient for it to be admissible before the Court". 

That is a first good first step if the gravity threshold is going to make any sense at all. But afterwards the reasoning loses of its credibility. The Chamber considers the elements to be taken into account, and refers to the criteria to be looked at at sentencing as a guideline. That doesn't really make sense because it suggests that the crimes that would be considered of sufficient gravity at the admissibility phase are the ones that would carry heavier sentences due to aggravating circumstances later on. But if only those cases are selected at the outset, the sentencing criteria become redundant when sentencing comes along.
On their factual analysis, the judges are even more unconvincing.

"The Chamber thus finds that the consequences of the attack were grave for the direct victims of the attack, that is, the AMIS personnel, and for their families. In addition; the alleged initial suspension and ultimate reduction of'AMIS activities in the area as a result of the attack had a grave impact on the local population"

"The consequences were grave for the direct victims"! How's that for an analysis? Of course the consequences were "grave", the victims died! But the Chamber can't really be saying that this is the threshold of gravity to be met, it would just strip it of its content once again. The consequences are always grave for the direct victims of crimes, whether it is genocide, rape or carjacking... as for the second criteria, I'm not convinced about the causality link. The ultimate reduction of AMIS activities in the region is a shameful strategic decision in response to the attack. But what did they expect? It is a war zone and risk is part of the job description. The reason there is a need for peacekeepers in the first place is because it is a risk zone...
I think this decision was the perfect opportunity for the judges to take a stand on the gravity threshold and make a policy statement that the OTP is apparently incapable of making that this kind of war crime, committed in isolation, is not a priority for an international court with a global dimension and limited means. And the opportunity was missed.