Yesterday, the Associated Press reported that the Union of Comoros (an island State in the Indian ocean between Madagascar and mainland Africa) has filed a “complaint” regarding the 2010 Israeli raid on a Turkish backed flotilla heading to Gaza with the International Criminal Court (ICC). The allegations specifically refer to the assault on the MV Mavi Marmara, a Turkish owned but Comoros flagged vessel, where nine protestors/aid-workers were killed during a confrontation with Israeli soldiers in international waters. The Prosecutor of the ICC, Mrs. Fatou Bensouda, has announced that her office will open a preliminary investigation into the events.
Leaving technical issues aside (for example, States do not lodge “complaints” with the ICC but refer situations), this situation raises two very interesting questions related to the ICC: (1) does the Mavi Marmara incident fall within the jurisdiction of the ICC?; (2) would such a case be admissible? These questions are not easily answered. I will do my best here to succinctly set out the law and some preliminary conclusions.
Jurisdiction of the ICC
The first question that must be answered is whether the ICC can exercise jurisdiction over the “complaint” brought to the Court by Comoros. To figure this out we must first look to the law governing the proceedings at the ICC.
Articles 5, 12 and 13 of the Rome Statute of the International Criminal Court (Rome Statute) sets out the scope of the court’s jurisdiction. Read together, these articles permit jurisdiction over genocide, war crimes, crimes against humanity and the crime of aggression where the crime took place on the territory of a State party or the perpetrator was a national of a State party. The Rome Statute also allows for jurisdiction absent these requirements where the situation was referred to the ICC by the United Nations Security Council. Importantly, the concept of territory specifically includes “the State of registration of [a] vessel or aircraft” where a crime is alleged to have taken place.
The Mavi Marmara at the time of the flotilla raid was in international waters and flagged as being from Comoros, who is a State part to the Rome Statute and therefore a part of the ICC. Article 12 of the Rome Statute clearly and unequivocally states that crimes occurring on a vessel fall within the jurisdiction of the court if the State of registration is a party to the Court. Comoros is a State party to the Rome Statute.
It appears that there is little doubt that the alleged crimes that took place on the Mavi Marmara fall within the jurisdiction of the ICC. However, just because a matter falls within the jurisdiction of the court does not mean that it will entertain the case.
The ICC is not a court that is designed to investigate all crimes of international relevance. Instead, it exists as a compliment to national justice systems and is only to prosecute cases where the national authorities have abdicated their right to do so, either through inaction, a design to shield the accused or waiver. Article 17 provides in relevant part,
Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where:
(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;
(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;
(d) The case is not of sufficient gravity to justify further action by the Court.
In essence, the existence of prior criminal process by a competent national tribunal prevents the ICC from exercising jurisdiction over a particular crime.
The ICC operates based on the active nationality principle (jurisdiction over nationals who commit crimes) and territory (jurisdiction over acts occurring within a State’s borders). These countries are Israel and Comoros, respectively. It is natural to look first to these States to inquire if there has been a previous or if there is an ongoing criminal action against the accused.
Israel conducted two different investigations into the Mavi Marmara incident, neither of which resulted in the recommendation of bringing criminal cases against those involved. However, given the nature of the allegations and the long standing contentions about the legality of the Gaza blockade, the Israel action alone could be argued (and I by no means am saying that I would believe such an argument) that these investigations were designed to shield the accused and justify the military action. The investigations then would not be enough to render the situation inadmissible before the ICC as Israel would be considered “unwilling […] to carry out the investigation or prosecution ”.
Using the ICC basis of jurisdiction, this leaves the Union of Comoros, the State on whose territory the alleged crimes were committed. There is no public news of any such investigation. All else being equal, an ICC investigation might make sense under these circumstances. However, there are other grounds upon which States can assert jurisdiction.
International law also permits States to assert jurisdiction over alleged crimes when the victim is a national of that State, or in some limited cases, under a universal jurisdiction theory. These cases will also serve as a bar to the ICC’s investigating and prosecuting a particular case as article 17 on refers to “State with jurisdiction” not the territorial and national States only.
The soldiers involved in the Mavi Marmara incident have been investigated in other States as well. Turkey has conducted an investigation and opened criminal cases against some of those involved. South Africa has done the same. Investigations in these States cannot be said as designed to shield the accused. The Prosecutor should immediately reject the “complaint” filed by Comoros as there have been national level investigations. The ICC does not exist to obtain a different result after prior process, but to take action when there has in effect been no prior process.
While the ICC would have jurisdiction over any alleged crimes falling within its mandate that occurred during the Mavi Marmara raid, those cases would be inadmissible due to prior actions at the State level.
 All of this can be found in the AP article, here, http://m.apnews.com/ap/db_268743/contentdetail.htm?contentguid=UL7jgByH.
 It is worth noting that prosectutions for this last crime cannot yet be initiated.
 This is not surprising. It would be quite absurd for a State to refer a situation after it had already tried to prosecute the offenders.