Introduction

On 6 November 2014, the Office of the Prosecutor of the International Criminal Court (‘‘The Court’’) announced its decision to close the preliminary examination into the situation in Union of Comoros (‘’Comoros’’). After her office conducted a thorough ‘legal and factual analysis of the information available’, the Chief Prosecutor Fatou Bensouda concluded that ‘the potential case(s) likely arising from an investigation into this incident would not be of “sufficient gravity” to justify further action by the ICC.’

Concurrent to the statement, the Office of the Prosecutor published a detailed article 53 (1) report on the Situation on Registered Vessels of Comoros, Greece and Cambodia, outlining the reasons for its decision. In her statement, Prosecutor Bensouda also recalled that the Comoros could request the Pre-Trial Chamber judges to review her decision. Although this is legally permissible under article 53(3)(a) of the Rome Statute, it has to be said that the powers of judicial review on prosecutorial decisions are limited, particularly when it is either  the Security Council or the State Party requesting  for a review of the  Prosecution’s decision.[1] Article 53(3) (a) does not categorically  provide that when either a State Party or the United Nations Security Council requests a judicial review of the prosecutor’s decision, the judges could overturn such a decision and order the prosecutor to open an investigation. All that the judges can do is to request the Prosecutor to reconsider the original decision. There is no provision within the Rome Statute to suggest any course of action to be taken in the event that the Prosecutor maintains the original stance not to proceed. Nonetheless, the situation would be different if the Pre-Trial Chamber decides to act on its own initiative, which is legally possible only if the prosecutor’s decision not proceed is based on gravity of the crime and the interest of justice. Under such circumstances the Prosecutor’s decision would be tied to the outcome of the Pre-Trial Chamber review process.

Consequently if the Comoros were to request the judges to review the decision as suggested by the Prosecutor, the Prosecutor could simply maintain her stance without being compelled to give in to some form of external pressure to alter it. The rationale for such approach in the Rome Statute is to ensure that the Office of the Prosecutor enjoys institutional independence from other organs of the Court. Still such an approach makes the Office of the Prosecutor susceptible to external criticism of unjust selective enforcement of international criminal law.

An Atypical Referral

On 14 May 2013, Elmadag Law Firm, a Turkish firm acting on behalf of the Comoros, filed an application under articles 14 and 12 (2) of the Rome Statute. The application referred the Israeli Defence Forces’ raid on the Humanitarian Aid Flotilla (bound for the Gaza Strip) to the Court. The application was filed three years after the raid in which a total of ten passengers (the majority of who were of Turkish nationality) were killed, and several others were injured.  Israeli military personal were also injured in the process.  While Comoros is a State Party to the Rome Statute, both Turkey, whose nationals were direct victims of the attack, and Israel, the perpetrators of alleged atrocity crimes,[2] are non-Party States.

Comoros’ involvement in this referral is linked to the fact that the alleged war crimes occurred on the Mavi Marmara, a vessel that was registered in, and flew the flag of the Comoros at the time of the incident. Thus, in accordance with article 12 (2) (a) of the Rome Statute, since Comoros was the state of registration of the vessel, the Court could exercise its jurisdiction based on the principle of territoriality. As a matter of fact the referral highlights the potential that the Rome Statute has to protect States Parties from aggressive actions and policies of non-Party States actors. It is also evident from this particular referral that the jurisdictional regime of the Court could even be useful in protecting the nationals of non-Party States if they are victims of atrocity crimes committed in the territory of a State Party.

What is more interesting however, is whether the relationship between Mavi Marmara and Comoros satisfies the threshold of ‘genuine link’, required under international maritime law, for the vessel to be considered a territory where Comoros actually exercised effective control at the time of the raid. Article 12(2) (a), which gives the Court territorial jurisdiction to vessels of States Parties is linked to article 5 of the (1958) Convention on the High Seas and article 91 of the 1982 United Nations Convection on the Law of The Sea. These two treaties assert that ‘Ships have the nationality of the State whose flag they are entitled to fly’. In addition, there is a requirement that ‘there must exist a genuine link between the State and the ship. The 1958 Convention elaborates on what genuine links means which is that; ‘the State must effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.[3] This explanation of what genuine link means was dropped in the 1984 United Nations Convention which has  made the interpretation of such a ‘well-established rule of international law’ very debatable and unsettled.[4]

The emerging trend in the case law of both the International Court of Justice and International Tribunal for the Law of the Sea, appears to suggest that registration is an adequate indicator for establishing genuine link.[5] That said, and for the purposes of exercising international criminal jurisdiction under the Rome Statute additional indicators might be necessary for establishing genuine link. For instance when the Prosecutor assesses admissibility of situations, under complementarity principle he or she must be able to establish whether the State with jurisdiction over the vessel is unable or unwilling to investigate or prosecute those responsible. This means establishing more than just the registration of a vessel but also that the state of registration can actually exercise effective control over the vessel including exercising its sovereign right to administer criminal justice.

The problem arises from the fact that, although, as highlighted already, the Mavi Marmara was flying the Comoros flag the vessel was only registered in the Comoros on 22 May 2010, just a week before the raid occurred on the 31 May 2010. This poses some questions as to whether that was enough to establish ‘genuine link’ between the State and the vessel. In addition, at the time of raid, the vessel was owned by the Foundation for Human Rights, Freedoms and Humanitarian Relief (IHH), a Turkish registered humanitarian non-governmental organisation. There are also reports that by August 2011 the registration of the vessel had already been transferred back to Turkey.  It is unfortunate that we will probably not get to know the Office of the Prosecutor and the Chambers’ interpretation of the threshold for establishing whether genuine link between state and vessels in this situation as the preliminary examination was closed.

Cryptic Decision

The Prosecutor’s report on the Comoros’ preliminary examination decision made a somewhat circumspect reference to the broader Palestinian-Israeli conflict and the related atrocities crimes committed for instance in the Gaza Strip. The report indicated that the Court lacked jurisdiction over ‘other alleged crimes committed in the context of the conflict between Israel and Hamas and in the broader context of any conflict between Israel and Palestine’. It is this author’s view that what lies behind this reference by the Prosecutor to the broader conflict between Israel and Palestine, is the hope by the prosecutor that the Palestinian Authority ratify the Rome Statute. This would give the Court broader jurisdiction than the one encompassed in the Comoros referral.

The uncertainty over the ability of Palestine to ratify the Rome Statute and adopt a declaration accepting the jurisdiction of the Court was removed in 2012, when the United Nations General Assembly granted Palestine the status of non-Member Observer State which arguably opened the way for it to ratify the Rome Statute. Since the United Nations General Assembly’s decision, Chief Prosecutor Bensouda has, on several occasions, suggested that the Palestinian Authority could either ratify the Rome Statute or could refer war crimes in its territory to the Court. The Palestinian Authorities have, on occasion, hinted at joining the Court, for instance, after the most recent Gaza war in 2014. However they have not yet provided a clear timetable for doing so. Perhaps this decision by the Prosecutor will act as another catalyst for the Palestinian Authority to expedite their ratification of the Rome Statute.

Such a step would not only extend the jurisdiction of the Court to foreign actors on Palestinian territory i.e. Israel, it would also mean the Court could investigate the alleged atrocities committed by Palestinians agencies such as Hamas. In the meantime the impunity gap that seems to exist in the Occupied Palestine Territories could be closed either through universal jurisdiction or by the Israeli authorities investigating and prosecuting those responsible.

The fact that the Prosecutor established that war crimes were committed during the raid, could stimulate the search for  alternative  avenues for seeking accountability through domestic mechanism whether in Israel or any states exercising universal jurisdiction

Conclusion

The circumstances surrounding the Comoros’ referral raise interesting questions. Primarily it reveals the interconnection of two different branches of international law: international criminal law and international law of the sea.  It is unfortunate that the circumstances  denies us of an opportunity to learn how, if at all, the Court might interpret the legal requirement of having a ‘genuine link’ between the flag state and the vessel under the Convention on the Law of the Sea. Secondly, the timing of referral points to the lack of consensus among African States on how to relate with the Court. Finally, the decision by the Prosecutor suggests that the best way that the Palestinian Authority can benefit from the protective shield of the Rome Statute is by becoming a State Party. However, due to the implications of this on all parties involved, this is quite contentious.

[1] Stahn C., (2009) ‘ Judicial Review of Prosecutorial Discretion: Five Years On’ in Carsten Stahn and Goran Sluiter (eds) The Emerging Practice of the International Criminal Court, Leiden, Martins Nijhoff Publishers at p. 255

[2]  A modern term introduced by David Scheffer to describe particular heinous crimes suitable for criminal prosecution before international tribunals and special national courts. Scheffer D., (2010) All The Missing Souls –A Personal History of the War Crimes Tribunals, Princeton , Princeton University Press at p. 429

[3] Convention of the High Seas (1958), Article 5

[4] See Attard, D. & Mallia P., (2014)’ The High Seas’, in Attard, D. Fitzmaurice, M., & Gutierrez. N, A. M (eds) The IMLI Manual on International Maritime Law: Volume 1: The Law of The Sea. Oxford: Oxford University Press, pp 248-255.

[5] Ibid