By Niklas Jakobsson
Ahead of this week’s Hubble, Justice Hub decided to dust off the poetic cliché by Plato and add a thematic twist. With the ICC deciding to shelve a case related to Gaza, Israel and Turkey, the blogosphere, Twitter and newspapers exploded with outraged reactions to the prosecutor’s move, along with a dash of sober reflection.
The incident the ICC contemplated dominated the news in May and June, 2010: six aid ships, known as the Gaza Freedom Flotilla – from six different organisations – were heading to the Gaza Strip and were intercepted by Israeli forces. Nine activists on the lead ship – the Mavi Marmara – were killed. The case was actually referred to the ICC by the Comoros Islands, where one of the ships was registered, enabling the prosecutor to make a “preliminary examination”.
In the early hours of Wednesday morning, rumours of a decision by the OTP started to seep out: unconfirmed reports that Israel was going to be accused of “war crimes”. As the hours went by, more information was made available – albeit unofficially – and it quickly became clear that the OTP was going in fact to shelve the investigation at the preliminary stage. In stepped Newton and his theory of gravity, but just like Plato, it was altered in the context of the situation.
Gravity quickly became the word on everyone’s lips – but the professional evaluations saw little wrong with the ICC’s decision. In a guest posting for Opinio Juris, Michael Kearney, lecturer in law at the University of Sussex, saw the decision, and reasoning, by the OTP as clear-cut.
“I don’t think this is an unexpected or an unreasonable conclusion from the Office of the Prosecutor with respect to the gravity aspect of a preliminary examination.”
Beth van Schaack evaluated the OTP’s decision for Just Security and sang along with the rest of the choir. Her evaluation was more specific, referring to similar cases being shut down at a similar stage.
“There is no question that the result is the right one, particularly given the closure of the first Iraq preliminary investigation which involved a similar number and type of alleged crimes (war crimes).”
But the choir had one tenor that stood out above the rest in its evaluation of the decision, namely the Israeli Ministry of Foreign Affairs. Unsurprisingly, the Ministry saw even the preliminary investigation as a waste of resources and politically motivated.
”Israel is of the view that there was no basis to open a preliminary examination in the first place and regrets that the precious time and resources of the Court – an institution established to combat impunity for the worst atrocities in the world – were allocated to a complaint that was legally unfounded and politically motivated.”
But international justice commentators did not only examine the immediate rights and wrongs of the decision. Speculation quickly arose about the larger implications the report could have. Toby Cadman was just one of many that saw the proseuctor’s comments on Israel occupying Gaza as a clear indication of things to come.
“It is also quite clear that the ICC Prosecutor is setting the ground for the Palestinian Authority to ratify the Rome Statute of the ICC. Whilst the number of victims in the Gaza Flotilla attack may be too few to justify an international investigation, the number of civilian casualties during Operation Protection Edge is well over 2,000.”
Beth van Schaack followed the argued uniformity of opinion – making the exact same point in her piece.
“Indeed, the analysis here is more detailed than would seem necessary in light of the question presented, suggesting that the Office of the Prosecutor (OTP) is signalling how it would approach ongoing potential crimes if and when the Palestinians re-engage with the Court.”
Kevin Jon Heller, professor of criminal law at SOAS, University of London, anticipated anger from the side of Israel regarding the OTP’s evaluation that the country is still occupying Gaza.
“…despite the declination, Israel is going to be very angry at the OTP — because the OTP specifically concludes (as part of its decision to classify the conflict as international) that Israel is still occupying Gaza.”
The Israeli Foreign Ministry wasn’t late to respond – but one would have to read a lot into the text to find anything closely related to ‘anger’.
“At the same time, Israel has reservations with respect to some of the legal reasoning and several incautious statements in the prosecutor’s report.”
But maybe that is what diplomatic anger looks like?
For most people evaluating the OTP’s report there was one major point to take away, summarised in the words of Toby Cadman.
“[the OTP] concludes that Israel is still an occupying force in Gaza. The reasoning is based upon the fact that it exercises complete control over border crossings, the airspace, and the sea. It enforces no-go areas within Gaza near the border, and it regulates the local monetary market based on the Israeli currency and control of taxes and customs duty. “
So…
– Was the OTP’s decision to shelve the Mavi Marmara investigation correct?
– What implications will this have on Palestine’s possible ICC membership?
– What is your evaluation of ‘gravity’ in this case?
Tomas is an Italian cartoonist who works for Cartoon Movement.
The Weekly Hubble features the most popular or controversial international justice story of the past week and reactions on social media to the news.
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