Alexandre Skander Galand

In early summer 2010, around fifty people were seriously injured and ten Turkish nationals died on a vessel part of the ‘Freedom Flotilla’: the Mavi Marmara ship.  The incident saw the establishment of a  UN Human Rights Council fact-finding mission, a separate panel of inquiry appointed by the UN Secretary-General, a Turkish Commission and a Israeli Commission of Inquiry (aka “Turkel Commission”).  The Israeli Defense Force (IDF)’s storming of the ‘Freedom Flotilla’, have subsequently been subject to judicial proceedings, both domestically in Türkiye, and internationally, at the International Criminal Court (ICC).

In May 2014, four arrest warrants were released by Istanbul’s Seventh High Criminal Court against former IDF Chief of Staff Gabi Ashkenazi, former Navy Chief Eliezer Marom, former Military Intelligence Chief Amos Yadlin and former Naval Intelligence chief Avishai Levy. A year earlier, on 14 May 2013, a referral was received by the ICC Office of the Prosecutor (OTP) from the authorities of the Comoros, a State Party to the Rome Statute of the ICC, in relation to the Humanitarian Aid Flotilla’s incident (registered vessels situation). Six months after Türkiye issued its arrest warrants, the OTP announced in its report under Article 53 (1) Rome Statute that it decided not to investigate the registered vessels situation.

OTP’s decision not to investigate was based on the ‘gravity’ criteria of the Rome Statute. According to the OTP, ‘the potential case(s) likely arising from an investigation into this incident would not be of “sufficient gravity” to justify further action by the ICC.’  In so doing, the OTP did not consider the other two criteria for declining to investigate, namely, complementarity and the interests of justice. As Kevin Jon Heller predicted, the Comoros ‘appealed’ the OTP’s decision and on 16 July 2015, the ICC Pre-Trial Chamber (PTC) requested the Prosecutor to reconsider its decision not to open an investigation. Acting under Article 53 (3) (a), the PTC took issue with several aspects of the OTP’s decision not to investigate (see comments here and here).

In this post, my aim is to analyze the OTP’s decision not to investigate on the basis of gravity and the PTC’s request to the OTP to reconsider its decision. I argue that OTP’s gravity assessment was hasty and came at the expense of assessing the potential complementarity of the Turkish proceedings. I will demonstrate that the OTP should have addressed complementarity first, noting the existence of the Turkish domestic proceedings and gravity thereafter; not the other way round in its decision. Acting this way would have entitled the OTP to let some time pass, gather evidence, and, if the Turkish proceedings provided compelling material on its theory of the case, monitor whether the Turkish authorities are willing and able.

The gravity requirement and the ‘most responsible persons’ criteria

According to the ICC jurisprudence, the first part of the gravity requirement involves a generic assessment of whether the persons that are likely to be the object of an investigation include those who may bear the greatest responsibility for the alleged crimes committed. The second part assesses gravity both quantitatively and qualitatively, considering the nature, scale, and manner of commission of the alleged crimes, as well as their impact (Kenya Article 15 Decision, par. 60-62). My analysis will focus on the first part of the gravity test.

In its Article 53 (1) report concerning the registered vessels situation, the OTP found that there was reasonable basis to believe that several war crimes were committed on the Mavi Marmara. However, according to the OTP, the potential perpetrators of the alleged war crimes “were among those who carried out the boarding of the Mavi Marmara, and subsequent operations aboard, but not necessarily other persons further up the chain of command.” (OTP Response to the Application for Review, par. 60) This seems at odds with the Istanbul’s Seventh High Criminal Court, who issued arrest warrants against no others than senior Israeli officers. The OTP, for its part, had concluded that the available information did not suggest that the identified war crimes resulted from a deliberate plan or policy; hence, the perpetrators could only be the low-level officers who carried out the boarding of the Mavi Marmara. The PTC, on the other hand, affirmed that without an investigation it was impossible for the OTP to know whether the crimes resulted from a deliberate plan or policy (par. 43).

In any case, the PTC also disagreed with the OTP’s contention that since the crimes were not committed by big fish, it limited the gravity of the crimes. The PTC held as follows:

‘the conclusion in the Decision Not to Investigate [i.e. Art. 53 (1) Report] that there was not a reasonable basis to believe that “senior IDF commanders and Israeli leaders” were responsible as perpetrators or planners of the identified crimes does not answer the question at issue’ (par. 23).

That being said, the PTC agreed with the OTP that an evaluation of gravity comprises consideration of whether the individuals or groups of persons that are likely to be the object of an investigation, include those ‘who may bear the greatest responsibility’ for the alleged crimes committed. However, according to the PTC, this criteria:

‘relates to the Prosecutor’s ability to investigate and prosecute those being the most responsible for the crimes under consideration and not as such to the seniority or hierarchical position of those who may be responsible for such crimes.’ (par. 23)

Thus, the alleged perpetrator’s low-ranking status does not dissatisfy per se this constitutive element of the requirement of gravity. According to the PTC, the focus would be, as Dov Jacob suggests, on the ‘ability’ to investigate and prosecute ‘those who may bear the greatest responsibility’ rather than on their seniority. How are we to make sense of this?

A plausible scenario of the ICC’s ‘inability’ to investigate and prosecute ‘those who may bear the greatest responsibility’, which would bear some cost on the gravity requirement, are crimes committed by child soldiers. If those who bear the greatest responsibility were under the age of 18 at the time of the alleged commission of the crimes, they are pursuant to Article 26 Rome Statute, out of the ICC’s jurisdiction. An even clearer situation of ICC ‘inability’ would be if those who may bear the greatest responsibility were found to be dead. In such cases, the Court could definitely not investigate and prosecute those being the most responsible for the crimes under consideration.

These factors may seem to relate more accurately to the jurisdiction of the Court than to the gravity of the situation. However, if those who bear the greatest responsibility are out of the ICC’s jurisdiction for the factors mentioned above, and the remaining perpetrators appear to have acted under superior orders, or were accessory to the crimes, the situation might indeed not be of sufficient gravity to justify further action by the Court. Moreover,  and this is precisely why complementarity should be addressed before gravity,  if the most responsible persons are investigated and prosecuted in a genuine and able domestic setting and the only potential remaining perpetrators appear to be less culpable, the OTP may justly conclude that these cases may not be grave enough.

Complementarity: Do judicial proceedings in the court of a non-party state count?

The OTP concluded in its report that “[i]n light of the conclusion reached on gravity, it is unnecessary to reach a conclusion on complementarity.” It is not clear why the OTP decided to analyze gravity before complementarity. As the ICC Pre-Trial Chamber indicated in Kenya Article 15 Decision, the admissibility test, as set out in article 17(1) of the Statute, has two main limbs: (i) complementarity (article 17(l)(a)-(c) of the Statute); and (ii) gravity (article 17(l)(d) of the Statute). Thus, logically, the OTP should have first addressed the absence or existence of national proceedings, and whether the State is unwilling or unable genuinely to carry out the investigation or prosecution. Then, if there are no national proceedings or there are national proceedings but the State is deemed unable or unwilling, we may finally assess the second limb, which is the gravity test. The OTP in the registered vessels situation reversed the admissibility test, and proceeded first to assess gravity.

If the OTP would have considered complementarity first, it could have omitted to issue a report and instead assess the Turkish national proceedings in order to establish a sufficient factual and legal basis to render a determination. There are no timelines provided in the Statute for a decision on a preliminary examination. While the gravity of a situation may evolve when there are new or ongoing crimes, the gravity of the crimes committed in the registered vessels situation can hardly change – it ended when the passengers of the vessels arrived in the Israeli Port of Ashdod. For this reason, the OTP completed its preliminary examination hastily as the situation was deemed not ‘sufficiently grave’; no further examination was needed. On the other hand, the progress (or regress) with respect to the Turkish investigation could take some time to assess as long as these proceedings are conducted with the intent to bring to justice the alleged perpetrators within a reasonable timeframe.

One element that needs to be clarified is whether proceedings in Türkiye, a State not party to the Rome Statute, are relevant to a complementarity assessment.  Article 17 Rome Statute, which governs inadmissibility, refers to proceedings “by a State which has jurisdiction over” the case. Thus, the provision does not differentiate between non-party and party States; as long as the State has jurisdiction over the case – and Türkiye has jurisdiction under the passive nationality principle – the proceedings are relevant. After all, the Rome Statute preamble recognizes “that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes” (emphasis added).

A second element is whether the proceedings in Türkiye are relevant for the OTP potential cases. The OTP is still at the level of preliminary examination, at which stage the aims is to gather evidence in order to know the type of groups of persons likely to shape its future cases. Should it consider what courts more proximate to the evidence have said in this respect? Could the proceedings conducted in the State most directly affected bring relevant evidence to shape its future case? Clearly, if after all consideration, the OTP still believes that the group of potential perpetrators are not the ones prosecuted in Türkiye, there is no complementarity issue for the OTP. That does not mean that the existence of the Turkish proceedings should be passed into silence. The OTP could simply have said that they are not dealing with the same case.

If, on the contrary, the OTP defers to the Turkish judicial proceedings against the Israeli senior officials, its next report on preliminary analysis could read as follows: ‘after reconsideration we have found that there is a reasonable basis to believe that “senior IDF commanders and Israeli leaders” were responsible as perpetrators or planners of the identified crimes, but since these potential cases are being investigated and prosecuted in Türkiye the situation is or would be inadmissible before the Court.’  However, this argument would stop short on the second string of the complementarity test: whether the State is unwilling or unable genuinely to carry out such investigation or prosecution. The Turkish proceedings are held in absentia; Israel has not surrendered the indicted individuals to Türkiye. Under Article 17(3) Rome Statute, a state is considered “unable” if it does not have the defendant in custody. Thus, the OTP could not decline to initiate the investigation on the basis of complementarity with respect to the Turkish national proceedings, as the latter is unable to secure the arrest of the ‘potential case(s)’ – albeit it is allegedlywilling. Simply, the preliminary examination of the registered vessel situation could remain ‘under examination’.

Most of the situations that are under preliminary examination have indeed been in the OTP’s dossier for much more time than the Comoros referral (since 2013). Just consider the situation in Colombia which has been under preliminary examination since June 2004, Afghanistan since 2007, Guinea since 2009, and Nigeria since 2010. The recent decision concerning the opening of an investigation into the situation in Georgia, is the follow up of a preliminary examination dating from 2008. Since 2011, the main focus of the OTP’s preliminary examination of Georgia has been on the existence and genuineness of relevant national proceedings. And, finally when in 2015 the Georgians informed the OTP that national proceedings have been indefinitely suspended, the OTP submitted a request for authorization of an investigation, which was granted last Wednesday 27 January 2016.

What next? The role of the ‘interests of justice’ argument

The Turkish proceedings are in their initial phase (i.e. May 2014), and as of now, they still have to continue. The OTP could thus consider the registered vessel situation as a ‘phase 3’ preliminary examination where it monitors the Turkish proceedings. This may force Israel to cooperate with Türkiye as they have no interest in being at the center of an ICC prosecution. However, if the recent news concerning the Turkish and Israeli  project to sign an agreementproviding for a $20 million compensation scheme for the Mavi Marmara victims in exchange  for  the dropping of the case by Türkiye does go forward, the Prosecutor could pass to ‘phase 4’ – as gravity has already been ruled out by the PTC decision. Phase 4 means assessing whether, taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice. One may argue that the Turkish – Israeli agreement could give an additional ground to the Prosecutor to decline jurisdiction on the ground that there are substantial reasons to believe that its investigation would not be in the interests of justice. But this ‘course of last resort’ would not be an easy way out for the OTP either; the OTP, itself, qualified the interests of justice as ‘one of the most complex aspects of the Treaty’.