When Israel is in the dock, the ICC becomes the International Kangeroo Court.

By Dogan Akman

A fundamental principle of law

One of the fundamental principles governing the administration of criminal law in the English common law tradition, adopted by the ICC, is not to interfere with the manner in which prosecutors exercise their discretion in handling the cases that reach their desk.

Among others, this quasi-sacred principle applies to the manner in which prosecutors exercise their discretion a) to determine in any given case whether or not to lay any charges; b) if charges are to be laid, to select the charges and the persons to be charged; and c) to decide the way in which the prosecution will be carried out.

Unless otherwise specifically provided by law in highly exceptional circumstances, attempts to seek to influence or interfere with the free exercise of prosecutorial discretion; to harass or to induce otherwise the prosecutor to change his or her final decision in any one case may lead, depending on the specific facts of each case, to charges of obstruction of justice, among others

Application of the principle by the ICC in the MV Marmara case

In its most recent ruling of September 2, in the MV Mavi Marmara case (MVM) initiated by Comoros, the Appellate Chamber of the CIC, made it a point to stress that the “ultimate decision” on whether to lay charges rests with the prosecutor.

The MV Mavi Marmara incident

In May of 2010, a flotilla of six ships named the Gaza Flotilla organised and presumably financed in part or in whole by the Free Gaza Movement (FGM) and the Turkish Foundation for Human Rights and Freedoms and Humanitarian Relief (IHH) – the latter with links to terrorist organisation, set out south with the intention of breaking Israel’s lawful military maritime blockade of the Gaza strip. This was the ninth and the biggest attempt of the FGM to achieve it.

Hence, despite the well-established procedure, the flotilla decided not report to the Port of Ashod to insure the orderly inspection and clearance of the goods destined for Gaza.

The six ships carried some 590 activists while three of them carried goods for humanitarian assistance to the people of Gaza.

Of the six ships, the MVM, a Turkish ship registered in Comoros and consequently required to fly the flag of that country, the took the lead, while the remaining five are played a support role through “passive resistance”.

Despite repeated warnings by the IDF, MVM carried on with the attempt to break the blockade. In the result, the Israeli Navy, in a rather botched operation, boarded the ship, only to face a group of 40 passengers – including members of the IHH, five of whom intended to die as martyrs, with pointed knives and iron bars who proceeded to attack the IDF soldiers. When on of the attackers robbed a soldier of his gun, the Israeli commando started to fire.

By the end of the fight, the IDF killed nine activists of which eight were Turkish nationals and one a Turkish American, and injured a number of the other activists that got in their way. A tenth, died from his injuries after spending some years in coma. 10 Israeli commandos suffered injuries, in one of which case the injuries were serious.

Turkey’s response

In response to this incident Turkey demanded Israel to apologise, and upon Israel’s refusal to do so, as to be expected, suspended military-but not commercial- ties with Israel and expelled the Israeli ambassador.

Comoros
A former colony of France, is an archipelago comprising four principal and many tiny islands in the Indian Ocean, situated off the south-east coast of Africa, to the east of Mozambique and north-west of Madagascar.

Sunni Islam is the dominant religion, representing almost 99% of the population. In 2013, the population numbered, slightly over 740,000. The 2019 estimate puts the population at slightly over 854,000.

In 1975, three of the islands, unilaterally declared independence under the name Etat Comorian, subsequently changed to the Federal Islamic Republic of the Comoro Islands and presently bears the name the Union of the Comoros. The fourth island, Mayotte, elected to remain with France and subsequently applied for the status of an overseas department of France.

According to the World Bank, about 45 percent of the total population falls below the poverty line. Inadequate healthcare, poor education and a rising population are the main contributing factors to the Comoros poverty rate.

Comoros before the ICC
Yet, in 2013, Comoros brought the MVM case before the ICC.  The decision of the tiny country to do that raises a number of questions.

First question

Why would such a poor country with little, if any, knowledge, and experience in the enforcement of international criminal law, let alone expertise, initiate such an expensive proceeding before a foreign court in the light of the facts that the country’s only links to the case are the facts that the ship is registered in Comoros and sails under the Comoros flag particularly in the absence of decisive evidence that on the day in question, the ship was indeed flying that flag.

In the circumstances, it is not unreasonable to submit that in the light of the facts that a) Turkey and Comoros being both Sunni Muslim countries; would and do consider themselves allies against Israel, by religious solidarity, if nothing else; and b) Comoros has third party state status before the ICC.

The first outcome before the ICC

In 2014, Fatou Bensouda, the Chief prosecutor of the ICC, without ordering a full criminal investigation, decided not to proceed further with the complaint on the grounds that while it was possible that war crimes were committed, the possible crimes were not grave enough to fall within the scope of the Court.

This outcome led a Turkish Criminal Court to issue warrants for the arrest of for IDF officers and some Israeli officials whom the Turkish government believed to be the key offenders. The government then turned the list of names to Interpol only to be rebuffed, while similar attempts to pursue the case in European Courts also led nowhere.

In the result, the proceedings initiated by Comoros, potentially offered the only chance of victory against Israel. Hence, Comoros proceeded to appeal the decision.

Comoros’ first appeal against the decision of the Bensouda

In 2015, in response to the appeal of Comoros, the judges of Pre-Trial Chamber of the Court (the first of two appellate level) by a vote of 2 to1 ruled that Bensouda had made material errors in her assessment of the incident’s gravity and requested her to re-open the investigation.

Bensouda appealed the ruling. On a 3-2 decision ICC Appeals Chamber dismissed her appeal and ordered her to review her conclusions looking at some wider information on the clear purported recognition of her right to reach the same conclusion, so long as she performed the kind of review it ordered.

The resolution of the conflict between Turkey and Israel

In 2016, Prime Minister Netanyahu, in a conciliatory gesture, called the Turkish President Erdogan.  According to the spokesman for his office, he made it clear that the tragic results regarding the MV were unintentional, and that Israel expresses regret over injuries and loss of life. He “apologised to the Turkish people for any errors that could have led to the loss of life.”  Erdogan accepted the apology.

Further, as part of the settlement of the dispute, a) Israel paid $US 20 million to compensate the families of the deceased and the injured; b) the Turkish Court dismissed all outstanding charges, and c) Israel agreed to let future Turkish aid to Gaza to be delivered through its port at Ashod.

The two countries then agreed to bury the hatched and proceeded to resume their diplomatic relations.

Three further questions

First, in the light of the facts that Turkey and Israel considered the apology and the agreement to be a mutually satisfactory political and financial settlement of the conflict, why did Comoros persist with her complaint before the ICC? One would have thought that Turkey would asked and urge her to desist?

Second, on the other hand, in the light of the formal agreement reached by Turkey and Israel, why would Comoros decide to pursue forcefully the case before the ICC, in retrospect, to its bitter end, despite the facts that she did not sustain any kind of loss to warrant the intervention of the ICC, and just as importantly her ally Turkey had secured a fully satisfactory settlement from Israel?

Third, in the light of this political and pecuniary settlement of the case between two sovereign countries why are both appellate levels of the Court, carrying on their interference with her discretionary authority and decision to close the case?

The second prosecutorial decision

In 2017, after spending two years investigating the case as directed, reading through 5000 plus pages of submissions, assessing the available evidence, and dealing with the issues of the reliability and credibility of some 200 witnesses submitted by Cronos and finding the testimony of a very substantial number of them to be lacking in both respects on a number of important factual issues, Bensouda must have felt that the case was a put up job.  At all events, she reaffirmed her previous conclusion on the basis that, inter-alia, there was no reasonable basis for her to believe that the identified crimes were committed on a large scale or as part of a plan or policy, and thus fell outside the court’s mandate. In the process she criticised the Appeal Chambers’ judges’ analysis on how to examine the gravity of the Israeli soldiers’ conduct and for disregarding the fact that the soldiers encountered violent resistance and as pointed above did not resort to firing until the protesters robbed one of the IDF soldiers of his gun.

In the light of the Court’s acknowledgment of the rule governing the discretionary powers of prosecutors to decide whether or not a charge is warranted, one would have thought that this would be the end of the matter.

Yet, in 2018, once again Comoros appealed the 2017 decision and once again the ICC Pre-Trial Chamber with a 2-1 ruling allowed the appeal and yet again ordered Bensouda to reconsider her decision. Bensouda in turn appealed against this ruling

In 2019, September 2, the Appeals Chamber, once again by a bare majority decision, dismissed Bensouda’s appeal and directed her, yet again, to reconsider her decision by December 2, 2019. In the process, the judges in the majority used the opportunity to give the Chief Prosecutor a harsh dressing down.

In conclusion

Behaving as they did, the two appellate levels have in effect reinterpreted the fundamental rule of law to mean that the Chief Prosecutor is empowered to make the “ultimate” decision to lay or not to lay a charge, so long as the decision is one that accords with the views of the appellate judges.

And until such a decision is reached, the appellate judges are at liberty of interfering with the exercise of this power until, the case is withdrawn or the prosecutor gives up her independence and complies with their wishes, unless that is, prior to reaching that point, the judges begin to feel or to realise that by persisting in their ways, they are running the risk of tainting both the integrity of the Office of Chief Prosecutor and the competence of its incumbent or that of the Court.

Surely, the lengths to which both appellate levels of the Court have carried on with the case, so far, and the lengths to which the judges in the majority went on to humiliate the Chief Prosecutor, and for all intents and purposes, to intimidate her into giving up to their wishes to take the matter to trial, must be unique in the history of the proceedings before the ICC and unheard of in any other self-respecting jurisdiction.

In the meantime, the ugly show will go on to December 2, 2019 and based on the history of this case, I would not be surprised, if it carried on well into 2020.

I submit that the abnormally long and still on-going proceedings and the substance of these proceedings to date, provides proof that, on a balance of probabilities, when Israel and Israelis are the potential targets of proceedings, the Court is unlikely to grant a fair trial with respect to the issues concerning them.

I would appear that in such instances, ICC reflexively mutates into the ICKC.

The successive Israeli governments that resisted and refused to subject the country to the jurisdiction of the ICC certainly knew what they were doing.

_________________________________________________________________________

Dogan Akman handled criminal prosecutions and civil litigation with the Canadian Federal Department of Justice for 24 years.