There is a reason many nations, including the United States and Israel, refused to join the International Criminal Court (ICC).
The fear was that ICC, created by the 1998 Rome Treaty, would go the way of entities like the UN Human Rights Council, and turn into a political operation directed at the West, the U.S. military, and Israel in particular.
The ICC just proved that these fears were warranted, with an outrageous decision overruling an ICC prosecutor’s decision not to investigate the Maarvi Mari incident, and requiring reconsideration because of international political concerns.
In the Mavi Marmara incident, covered here many times (see Featured Image), Israeli commandos boarded a ship part of the 2010 Gaza flotilla organized by Turkish Islamists. The Israeli troops were attacked and responded with gunfire which killed 9 Turkish citizens.
The incident caused a political rift between Israel and the already anti-Israel, anti-Semitic Islamist Turkish Prime Minister Recep Tayyip Erdogan.
A UN panel determined that Israel’s naval blockade of Hamas-run Gaza complied with international law, and that Israel faced “organized and violent resistance” when it legally boarded the Mavi Marmara.
The ICC prosecutor decided not to open a formal investigation (.pdf) of the Mavi Marmara incident as a war crime, given the limited scope of the incident.
The ICC judges just ordered otherwise, requiring reconsideration as reports Law Professor Avi Bell in The Times of Israel, The ICC declares war on Israel:
The Pre-Trial Chamber of the International Criminal Court, for the first time in its history, has ordered the ICC Prosecutor to pursue an investigation she has decided to close. The Chamber ruled that the Prosecutor was wrong to close the preliminary investigation into war crimes charges against Israel for crimes allegedly committed in boarding the Mavi Marmara and other vessels during the flotilla incident of 2010.
The ruling of the Pre-Trial Chamber is remarkable.
It holds that the Prosecutor should have taken into account facts and actions that are outside the jurisdiction of the court in deciding whether to bring charges.
It holds that the Prosecutor should assume the truth of even the wildest accusations in deciding whether to bring charges; in other words, there should be an irrebuttable presumption of guilt in the preliminary investigation stage.
And most shockingly, it holds that crimes have sufficient gravity to interest the court, even if they have very few actual victims, as long as they are widely covered by the media, and are subject to a lot of political activity at the UN.
The key to the outrage was that the ICC demanded that international political considerations be taken into account by the prosecutor, something that normally would be outside the consideration of a prosecutor, and a consideration that taints any ruling directed at Israel. The ICC compounded that error by specifically requiring consideration of the views of the anti-Israel UN Human Rights Council.
Here is the key paragraph (.pdf)(emphasis added):
48. In any case, the Chamber is of the view that, in light of the available information, the Prosecutor should have recognised the possibility that the events at issue had an impact going beyond the suffering of the direct and indirect victims. Indeed, as submitted by the Comoros, the commission of the identified crimes on the Mavi Marmara, which were highly publicised, would have sent a clear and strong message to the people in Gaza (and beyond) that the blockade of Gaza was in full force and that even the delivery of humanitarian aid would be controlled and supervised by the Israeli authorities. Also, the international concern caused by the events at issue, which, inter alia, resulted in several fact-finding missions, including by the UN Human Rights Council and the UN Secretary General, is somehow at odds with the Prosecutor's simplistic conclusion that the impact of the identified crimes po ints towards the insufficient gravity of the potential ICC-01/13-34 16-07-2015 24/27 EC PT No. ICC-01/13 25/27 16 July 2015 case(s) on the mere grounds that the supplies carried by the vessels in the flotilla were ultimately later distributed to the population in Gaza.
In other words, the ICC turned a prosecutorial consideration into a political decision, by deferring to UN bodies and public opinion that are hopelessly biased against Israel.
As Law Professor Eugene Kontorovich points out, the ICC judges made it clear that Israel has no chance of a fair hearing at the ICC:
— Eugene Kontorovich (@EVKontorovich) July 16, 2015
By treating “in’l concern” – as measured by UNHRC action – as jurisdiction factor, ICC saying “drop dead” to victims UN not interested in — Eugene Kontorovich (@EVKontorovich) July 17, 2015
Bell notes that Court’s weird ideas about having to presume guilt entirely unsupported by citation & will never be cited for other countries
— Eugene Kontorovich (@EVKontorovich) July 16, 2015
Law Professor Kevin Jon Heller has a scathing critique of the decision, The [ICC] Pre-Trial Chamber's Dangerous Comoros Review Decision:
To put it simply, this is a deeply problematic and extremely dangerous decision — nothing less than a frontal assault on the OTP's prosecutorial discretion, despite the PTC's claims to the contrary. I will explain why in this (very long) post.
Bias against Israel is not manifested merely by rulings against Israel, but by applying different standards and scrutiny to Israeli conduct. The ICC just exhibited clear bias.
If only the Mavi Marmara incident were involved, it would be bad enough.
But this may be an indication that in ruling on Palestinian Authority requests for an investigation of Israel the ICC will require prosecutors to take into account international political considerations.
When the Palestinians decided to join the ICC, numerous international law experts predicted that under established precedent, the investigation should not even formally proceed. I was skeptical:
>>>>>> Major caveat — these analyses assume that the ICC treats Israel the way it would treat any other nation, but anything that related to Israel always seems to skew international organizations, so I have my doubts. <<<<<<
Sure enough, already we have seen the ICC treat Israel differently with regard to the Palestinian charges, Int'l Criminal Court already treating Israel differently (quoting Prof. Kontorovich):
The ICC's Prosecutor announced today the opening of a "preliminary examination" into "the Situation in Palestine." This means she will consider, on jurisdictional, evidentiary and policy grounds whether to open an investigation into crimes that may have been committed during this summer's Gaza conflict. Opening such an investigation is a fairly standard step after receiving a declaration of acceptance of jurisdiction under Article 12(3) of the Rome Statute, and would not normally warrant much notice (other preliminary investigations also involve alleged crimes by the U.S. in Afghanistan and the U.K. in Iraq, though precious few Americans or British are aware of this).
But this decision of the prosecutor is quite different, and extremely significant. The decision to open the inquiry involved the prosecutor determining that the Palestinian Authority is in fact a "state," a necessary precondition to jurisdiction under the Rome Statute, the Court's constitutive treaty.
The ICC has never accepted jurisdiction over what is clearly at most a "marginal" state – one that is not a U.N. member, that has not ever claimed to govern any territory, and whose recognition by other states is limited (for example, the U.S., Canada and most Western European states do not recognize the existence of a Palestinian state). This is clearly dramatically different from anything the Court has done before.
The Mavi Marmara ruling together with ICC procedural rulings on the Palestinian charges portends another international anti-Israel kangaroo court.
The ultimate damage will be to the credibility of the ICC.