Investigating Gaza flotilla deaths would sacrifice International Criminal Court’s legitimacy

The violent takeover of the Mavi Marmara simply does not stack up to other violent mass executions of passive civilians. Referring a relatively minor incident to the ICC in the context of a highly politically charged conflict would confirm the suspicions that the court is no more than a political wolf camouflaged in the neutral trappings of criminal justice.

By Noam Wiener

Investigating Gaza flotilla deaths would sacrifice International Criminal Court's legitimacy
Mavi Marmara. (Free Gaza movement/CC BY-SA 2.0)

On May 14, the Union of Comoros, represented by Turkish attorneys, sent the Prosecutor of the International Criminal Court (ICC) a referral requesting it commence an investigation into Israeli conduct, due to alleged war crimes and crimes against humanity.

The complaint does not refer to Israel’s illegal settlement policy, nor does it refer to the use of phosphorous shells during Operation Pillar of Defense. The referral does not pertain to the rather liberal use of artillery by the Israeli military during Operation Cast Lead either. No, Comoros is alleging that war crimes and crimes against humanity of a gravity that ought to engage the ICC took place when Israeli commandos boarded the MV Mavi Marmara during the flotilla incident in May of 2010.

Comoros, a member of the ICC, can refer the case to the prosecutor because the Mavi Marmara was sailing under a Comorian flag. Thus, any alleged crimes committed on board the Marmara took place on Comorian sovereign territory, granting the ICC jurisdiction in the case.

I am a firm believer in the moral imperative to bring international criminals to justice, and thus am also a supporter of the ICC. Yet I think this referral is an abuse of the institution of international criminal law. The abuse is not the result of jurisdictional overreach – the grant of ICC jurisdiction over individuals who are citizens of non-member states is perfectly legitimate if these individuals commit crimes in the territory of a member state. Further, the reason I say it is an abuse of the ICC is not because the Israeli military did everything it ought to have done to minimize casualties – it did not, the Israeli operation was reckless and dangerous. It is simply that even if all the allegations are true, this is not a case of the magnitude or gravity that ought to take up the time of the prosecutor.

That the ICC has jurisdiction over alleged crimes does not mean the prosecutor is obliged to commence proceedings. I do not intend to provide a complete legal analysis here of the admissibility requirements of the ICC (see legal blogs here, here, and here for some legal analysis or read the Rome Statute here).

Instead I merely ask that we think of some of the cases that the ICC and other ad hoc international criminal tribunals have dealt with so far: World War II in Europe and in Asia (millions killed), the killing fields in Cambodia (two million victims), the wars in the former Yugoslavia (tens of thousands killed and millions displaced), the genocide in Rwanda (hundreds of thousands killed), the civil war in Sierra Leone ( tens of thousands killed and millions displaced), or the fighting in the Congo (tens of thousands killed in each, thousands of child soldiers recruited).

And then look at the nine dead on the Mavi Marmara.

My intention is not to be disrespectful to the people who lost their lives trying to break into Gaza, or to argue that the Israeli military was in the right. Every life lost is a tragedy. But in a world of limited resources one must choose how to allocate prosecutorial time and money so as to go after the gravest crimes. The violent takeover of the Mavi Marmara simply does not stack up to violent mass executions of passive civilians. Referring the situation to the prosecutor, with the knowledge that it does not measure up to the standard, has costs.

First, one of the main arguments made by detractors of the ICC has been that it will be used as forum to bring petty political based complaints to harass states instead of acting as a neutral arbiter. The scale and severity of this action, when compared to genocide and campaigns of mass rape and extermination, plays right into the hands of the ICC’s opponents. Referring a relatively minor incident in the context of a highly politically charged conflict would confirm suspicions that the ICC is no more than a political wolf camouflaged in the neutral trappings of criminal justice.

Second, Israeli conduct in the occupied territories and Gaza is sometimes manifestly criminal (settlements) and at other times most likely criminal (instances of indiscriminant use of force – I say most likely because the conduct is subject to claims of proportionality). The results of such conduct are disastrous, with the occupation costing thousands of lives and causing grave injustices over the years. But all this is simply irrelevant to the case of the Mavi Marmara. Trials, unless the judges lose control of the courtroom, focus on specific questions relevant to specific charges rather than on broad political contexts. The Marmara case, should it reach trial, will focus on questions such as the degree of force the Israeli military could use to enforce its blockade, in light of the resistance of the people on board the ship, and other similarly technical questions that have nothing to do with the plight of Palestinians. Thus, this referral risks assisting Hasbara experts in “spinning” the discussion away from more serious violations stemming from Israel’s conduct.

The ICC is still very much a nascent institution. Although it should not shy away from taking on serious cases due to political pressure, adhering to the gravest manifestations of international crimes is crucial to the court’s legitimacy. It would be best for supporters who believe that international law has an important role to play in defining basic norms of behavior and punishing perpetrators who violate them to refrain from setting unnecessary pitfalls for the ICC and sacrificing its legitimacy in order to promote narrow political ends.

Noam Wiener is a doctoral candidate at the University of Michigan Law School researching international criminal law.