The Decision on the Gaza Flotilla by the ICC Prosecutor: A Warning for the
Future
INSS Insight No. 635, November 27, 2014
Pnina Sharvit Baruch, Keren Aviram
http://www.inss.org.il/index.aspx?id=4538&articleid=8173


SUMMARY: The Mavi Marmara incident, which occurred more than four years ago
and involved the deaths of ten people, will not lead to proceedings against
IDF soldiers by the International Criminal Court (ICC). In the wake of the
complaint submitted to the ICC prosecutor by the Comoros Islands alleging
that IDF solders committed war crimes and crimes against humanity and
requesting that a criminal investigation be opened, the prosecutor conducted
a preliminary examination of the events. In her report, the prosecutor wrote
that while there is a reasonable basis for believing that war crimes were
committed on board the Mavi Marmara, the gravity of the crimes was not
sufficient to meet the threshold requirement in the Statute of the Court,
and that therefore, there is no basis for opening a criminal investigation
of this incident. While the prosecutor’s operative conclusion is favorable
to Israel, the decision’s analysis of the events, combined with the findings
and conclusions, could be indicative of the position the prosecutor’s office
will adopt toward future incidents. Israel should take this seriously,
drawing the appropriate conclusions and preparing for the future.

On November 6, 2014, the prosecutor of the International Criminal Court
(ICC) issued a report determining that there will be no investigation
against Israel regarding the Mavi Marmara incident, which took place in late
May 2010. This decision came at the end of a preliminary examination carried
out in response to a complaint submitted in May 2013 by the Union of the
Comoros, where the Mavi Marmara was registered and whose flag it was flying
at the time of the incident. The complaint, which asked that a criminal
investigation be opened against IDF soldiers for perpetrating war crimes and
crimes against humanity against the flotilla ships and their passengers, was
actually submitted by a Turkish law firm. Unlike Israel and Turkey, the
Comoros is a party to the Statute of the Court.

The flotilla incident has been reviewed and investigated by four different
commissions of inquiry: the Hudson-Phillips Commission, appointed by the UN
Human Rights Council; the Palmer Committee, appointed by the UN secretary
general; a Turkish commission of inquiry; and Israel’s Turkel Commission.
The prosecutor’s report is based largely on the reports of these
commissions. The report states clearly that since the prosecutor’s office
lacks investigative powers at the preliminary investigation stage, the
analysis is based on available information and is not the result of an
investigation.

Legal Analysis

Before analyzing the events on their merits, the report addresses a number
of aspects of the legal background relevant to an examination of the
incident:

Gaza as an occupied territory: The report states that there is reasonable
basis upon which to conclude that Israel continues to be an occupying power
in Gaza despite the 2005 disengagement. This is in keeping with the
prevalent view within the international community and application of the
“effective control” test, which is based on the level of control Israel has
retained in Gaza, which includes, inter alia, land and sea borders,
airspace, and the ability to infiltrate the Gaza Strip for military
operations.

Classification of the conflict: According to the report, since the conflict
between Israel and Hamas is not a conflict between states, it therefore may
be considered a “non-international armed conflict.” On the other hand, in
light of the determination that Gaza is occupied territory, the laws of
international armed conflict, which apply in any situation of occupation,
are applicable. The report emphasizes that most of the analysis concerning
war crimes conducted in the report is valid for both types of conflicts, and
thus there is no need to reach a definitive conclusion on classification of
the conflict.

Legality of the naval blockade: The report does not reach a decision on this
question, on which the different commissions of inquiry have differences of
opinion, because according to the report, the legality of the naval blockade
is relevant to only one of the alleged crimes (the crime of intentionally
directing an attack against civilian objects, that is, the takeover of the
Mavi Marmara) and does not impact on the assessment of the other war crimes
examined.

Substantive Crimes

Claims that were accepted: The report states that there is a reasonable
basis to believe that war crimes were committed by IDF soldiers,
specifically, the willful killing and injuring of protected civilians. The
claim accepted by the Turkel Commission, that the violent IHH activists
should be seen as civilians taking direct part in hostilities, and
therefore, as a legitimate military target for attack, was rejected.
According to the report, all passengers on the ship, including these
activists, are considered protected civilians and thus may not be attacked.
The report notes that the use of force against violent civilians endangering
the soldiers’ lives can be perhaps justified by self-defense. However, it
determined that this must be examined in the investigation and trial stages
and not at the stage of preliminary examination. The report also states that
according to the information available, at least in some instances, IDF
soldiers appear to have used excessive force that went beyond what was
required for self-defense. In addition, the report states that there is a
reasonable basis to believe that IDF soldiers perpetrated war crimes against
the detainees on the Mavi Marmara, by committing “outrages upon personal
dignity.” It also notes that if Israel’s naval blockade of Gaza was unlawful
(as mentioned, the report is not definitive on this issue), then the war
crime of intentionally directing an attack against civilian objects would
also be added.

Claims that were rejected: The report rejects a significant number of other
allegations made against IDF soldiers. These include willful infliction of
suffering; inhuman treatment; unjustified extensive destruction of property;
intentional attacks on protected civilians; intentional attacks with the
knowledge that this would cause excessive “incidental loss of life or
injury” to civilians; and deliberate attacks on people or objects involved
in a humanitarian aid mission. (The report states that the Gaza flotilla did
not involve humanitarian aid because of the organizers’ lack of neutrality
and impartiality and the primary political objectives that were the basis of
the flotilla.) The prosecutor also rejected the serious allegation of crimes
against humanity.


Admissibility

Since the report determined that there is a reasonable basis for assuming
that war crimes were committed, it was then required to examine whether they
meet the admissibility thresholds established in the Statute of the Court
for determining that the court may hear the case: the gravity requirement
and the complementarity requirement. The report concludes that the crimes
allegedly carried out on the Mavi Marmara do not reach the required gravity
threshold in terms of their scope, their nature, and their impact. This is
particularly true given the demand in the Statute of the Court that war
crimes be part of a plan or policy or carried out on a large scale. The
report states that the gravity requirement has not been fulfilled, since the
complaint addresses only the limited incident of the flotilla, in which ten
people were killed, and the court lacks the jurisdiction to hear cases
involving other crimes allegedly carried out as part of the
Israeli-Palestinian conflict.

Since the gravity threshold was not met, the prosecutor had no need to
consider the issue of complementarity, that is, to examine whether there
were Israeli or other inquiries that were genuine and effective.

Ramifications

1. From the analysis in the report, which states that there is a basis
for investigating commission of war crimes even in a situation where there
was a violent clash endangering soldiers’ lives, we can conclude that in
high intensity operations, IDF actions might also be considered as allegedly
falling within the war crimes listed in the Statute of the Court, at least
in a way that justifies opening a criminal investigation.

2. If “Palestine” becomes a party to the Statute of the Court or gives
the court ad hoc authority to hear cases involving events that took place on
its territory, one can assume on the basis of the report that given the
scope of Israeli military operations, the threshold requirement of gravity
will be considered to have been met. In practice, the issue of
complementarity would then become the last barrier to open investigative
proceedings in the court.

3. In light of the report’s position that Gaza is “occupied territory,”
it can be assumed that this will be the prosecution’s starting point in the
future as well. This means the application of additional legal norms (the
laws of occupation, which impose obligations toward the civilian population
in the Gaza Strip, and human rights law), beyond the requirements of the
laws of armed conflict.

4. The court’s extensive reliance on the findings of the various
commissions of inquiry of both parties to the conflict as a basis for
determining the facts illustrates the importance of these commissions.


Recommendations

1. It is important to reinforce Israel’s potential argument of
complementarity by conducting internal investigations that are independent,
thorough, swift, and transparent, and conform to international standards. It
is also worth considering the establishment of a commission of inquiry to
examine overall policy on the senior political and military levels, in order
to counter potential allegations regarding Israeli policy on the use of
force.

2. It is very important to publish reports and documents on behalf of the
State of Israel that detail the facts and present the Israeli position
regarding the events of the fighting. It is important to declassify as much
intelligence as possible and provide visual material and testimony by
soldiers who were on the field in order to provide a complete picture of the
battle, instead of focusing only on the incidents on which complaints have
been submitted and individual investigations opened. These reports will
ultimately form part of the background the prosecutor and the court will
refer to in making a decision on initiating criminal proceedings.

3. In light of the great weight given to the findings of international
commissions of inquiry, it is important to examine cooperation with external
international commissions of inquiry, even when they are biased by their
nature, such as the Schabas Commission appointed by the UN Human Rights
Council to investigate Operation protective Edge. Cooperation might lead to
less decisive findings against Israel and then perhaps to a less damaging
report, which could make it somewhat easier to deal with future proceedings.
Commissions generally include some people who are less biased and who can
perhaps exert their influence from within. Moreover, cooperating in and of
itself does not imply acceptance of the justification, fairness, or
professionalism of the commission of inquiry.