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 Pre-Trial Chamber’s Dangerous Comoros Review Decision
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.
Needless to say, none of these holdings are accompanied by any citation to precedent. That’s because they are without any precedent. (h/t Yenta Press)
It will be the rare situation indeed that does not satisfy Art. 53(1)(a) and Art. 53(1)(b). How many non-frivolous referrals do not contain allegations of at least one crime within the Court’s jurisdiction? And how many situations will fail gravity analysis in light of the PTC’s insistence that a situation involving only low-level perpetrators and less than a dozen deaths is grave enough for a formal investigation? If allowed to stand, then, the PTC’s decision will force the OTP to either open formal investigations into literally dozens of situations (including all of the current situations it is preliminarily examining) or decline to investigate specifically on the basis of interests of justice — the one criterion, according to the PTC, where it maintains considerable discretion. Given the OTP’s evident resource limitations, that is not really a choice.PM slams ICC demand to reopen probe into Mavi Marmara raid
And therein lies true danger of the PTC’s Comoros decision. Recall what I said earlier: when the OTP declines to open a formal investigation because a situation does not include a crime within the Court’s jurisdiction or because the situation is not adequately grave, the PTC can only request the OTP reconsider its decision not to investigate. The current decision is an example. But when the OTP declines to open a formal investigation because such an investigation would not be in the interests of justice, the PTC can demand the OTP reconsider. In practice, then, the Comoros decision will force the OTP to decline to open investigations on the one ground that is always subject to “hard” review by the PTC.
Put more simply: if the Comoros decision is allowed to stand, the PTC will have given itself final say over all OTP decisions not to open a formal investigation into a situation. That is fundamentally incompatible with the Rome Statute’s guarantee of prosecutorial independence, and it is not acceptable.
Netanyahu said the Israel Navy commandos involved acted in self-defense, on a mission to maintain an internationally backed naval blockade. The ICC judges’ move was “motivated by cynical politics,” he claimed. Israel’s soldiers, he added, would “continue to keep Israel safe,” and Israel would “continue to protect them in the international arena.
“At a time when [Bashar] Assad in Syria is slaughtering tens of thousands of his own people, when Iran is executing hundreds and Hamas in Gaza is using children as human shields, the court chooses to deal with Israel for cynical political reasons,” he charged.
“Against this hypocrisy, our soldiers will continue to protect us in the field and we will defend them in the international arena,” he said.
Defense Minister Moshe Ya’alon termed the move hypocritical and scandalous.
Deputy Foreign Minister Tzipi Hotovely (Likud) said the ICC judges making the demand had been mobilized by Palestinian “incitement.”
“It’s very puzzling to me why the International Criminal Court would decide to open a probe into soldiers who defended themselves against brutal attacks by terrorists aboard the Marmara,” she said in a statement to the press.
“There are Palestinian actors who are trying all the time to incite international bodies against Israel. I hope those same bodies will be able to identify the incitement and not help it along,” she went on.














