Yesterday, 25 November 2013, the Office of the Prosecutor (OTP) at the International Criminal Court (ICC) released its annual report on preliminary investigations. This document sets out what actions were taken by the OTP in the consideration of potential situations that have been brought to the attention of the office. The report sets out the state of the examinations, whether the OTP believes there is jurisdiction, reasonable basis to believe crimes have been committed, whether there is an admissibility issue and whether the crimes are serious enough to be tried by the ICC.
10 potential situations were under examination by the OTP during this reporting period. They were:
Afghanistan – relating to the non-international armed conflict in that country;
Honduras – allegations of crimes committed following the ouster of former President Zelaya in 2009;
The Mavi Marmara Incident – relating to the Gaza Freedom Flotilla;
Republic of Korea – relating to alleged attacks by North Korea;
Colombia – relating to the drug war;
Georgia – relating to the 2008 war with Russia;
Guinea – relating to the 28 September Massacre;
Nigeria – relating to Boko Haram;
Mali – relating to the recent violence in that country; and
Palestine – relating to crimes allegedly committed during Israel’s occupation.
Of these potential situations, 3 are in Africa, 2 are in Asia, 2 are in Latin America, 1 involves the States of the former Soviet Union and 2 derive from the Israeli/Palestinian conflict. The only situation to progress to the opening of official investigations, Mali, is from Africa.
All the preliminary examinations are still pending except for Mali (as noted an investigation was opened) and Palestine, where the OTP stood by an earlier decision about the invalidity of the referral. However, the OTP indicated a road that may lead to a different determination in the future.
Of the preliminary examinations, four of them included interesting pronouncements of law by the OTP: Honduras, Mavi Marmara, Korea and Palestine. I would like to address each briefly, in turn.
In 2009, then president of the Republic of Honduras was arrested and removed from the country by members of the armed forces. This event triggered large-scale protests and allegations of severe human rights abuses against protestors by the newly installed authorities. Information was sent to the OTP alleging that these violations amounted to Crimes Against Humanity (CAH). In the end the OTP determined – at least at this stage – that the reported violations of Human Rights Law while severe, there was insufficient grounds to believe that they were CAH due to the apparent lack of a governmental plan or policy to commit them and/or nexus with that plan should it exist.
The most interesting part of this document is that it takes for granted that the removal of Zelaya was a coup. I have written about these events before, and it seems to me that the issue has not been analyzed enough. In any case, the characterization of the events is not relevant to the determination of whether crimes within the jurisdiction of the court were in fact committed.
The Mavi Marmara incident relates to the “Gaza Freedom Flotilla” and the Israeli raid that prevented it from reach Gaza. The OTP underwent an analysis very similar to that in a prior post on this blog. So far, review has only been conducted as to the jurisdiction of the court. The next step is for the OTP to determine whether there are reasonable grounds to believe crimes within that jurisdiction have been committed. Then it will be necessary to determine if the cases are admissible.
This decision is notable for its direct application of the rule that a ship is a “floating territory” of the flag State, and therefore sufficient for founding the court’s jurisdiction.
The OTP determined that there is jurisdiction over alleged crimes committed by the North Korean military in South Korea (a shelling incident and an attack on a military vessel). The next step in the process is to determine whether there are grounds to believe specific crimes were committed.
The interesting part of this decision is that jurisdiction is based on the simple fact that the specific incidents in question were uses of military force between States. The OTP found that the simple recourse to the use of armed force between States, even if not in a continual fashion, is sufficient to create an international armed conflict. This reading of the law is not out of line with international pronouncements on the nature of international armed conflict. However, it does beg reason to say that a single incident of military to military force is enough give rise to an international armed conflict. Border incidents, for example, have long been recognized as not meeting the threshold of the beginning of an armed conflict. I do not mean to say that the events in question are insufficient, only that the OTP analysis leaves much to be desired.
In 2012 the OTP announced that it would not initiate an investigation in to allegations of crimes in Palestine as there was no consensus that Palestine was a State capable of granting the court jurisdiction. Since that decision, Palestine has been recognized as a non-member Observer State at the UN, that is, it has been recognized as a State by the General Assembly. However, the OTP found that since the “referral” was made in 2009, before Palestine was recognized by the General Assembly, it could not grant the court jurisdiction. The implicit logic leads one to believe that the OTP would accept a new referral from Palestine as being valid.
This is perhaps the most interesting decision in the whole OTP annual report. If I have interpreted it correctly, and the authorities in Palestine so choose, we could see the ICC with jurisdiction (at least in the view of the OTP) over alleged crimes in the occupied territories. If there have been accusations that the ICC has been politicized in the past, they will be nothing compared to what is said if the court finds it has jurisdiction. The political arena in the Middle East may be getting ready for an earthquake.
 ¶ 111 of the OTP report.
 Nicaragua v. United States, ICJ at ¶¶ 164, 211, 249.