Dapo Akande in his post at EJIL Talk analyses the reasons for, and the impact of, the Comoros referral of the Gaza flotilla incident to the ICC. He highlights this as a situation where a State party (Comoros) brings a case against a non-State party (Israel) – an African State against a non-African State, for the first time in the history of the ICC.
In the past, there were allegations that the Court focused on punishing persons from the African continent. We also discussed Africa in light of universal jurisdiction and that the limited capacity of international mechanisms to deal with the scale of violations has redirected attention to domestic courts both within the state where the crime was committed and abroad. Akande’s comments brings an interesting perspective following Palestine’s failed attempts to bring Israel before the ICC. His parallels to the political context in which the ICJ decided a case against the US, brought by Nicaragua in 1986 is clever (for further discussions on the referral see also here and here).
We should also analyse this referral under our jurisdiction lesson. Comoros comes to the ICC under A. 14 and 12(2) of the ICC Statute.
A. 14 states:
A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes. (NB: There is debate on whether this referral covers a “situation” – see here and here)
A. 12 (2) states:
…. the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:
(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;
(b) The State of which the person accused of the crime is a national.
In paragraph 1 of the referral, Comoros sets the ground for jurisdiction.
This referral along with its particulars are submitted to the Madame Prosecutor of the International Criminal Court (hereinafter “ICC”) by Union of the Comoros (hereinafter “Comoros”), a State Party to the ICC as well as the registered State of MV Mavi Marmara vessel -one of the passenger vessels of the humanitarian aid flotilla bound for Gaza on 31 May 2010, in which nine (9) victims were killed on board and more than dozens were seriously injured, as a consequence of the attacks of the Israel Defence Forces (hereinafter the “IDF”), in international waters.
Comoros comes to the ICC as the flag State. Comoros can also exercise territorial jurisdiction based on the decision of the ICJ in the Lotus Case where it held that,
If, therefore, a guilty act committed on the high seas produces its effects on a vessel flying another flag or in foreign territory, the same principles must be applied as if the territories of two different States were concerned, and the conclusion must therefore be drawn that there is no rule of international law prohibiting the State to which the ship on which the effects of the offence have taken place belongs, from regarding the offence as having been committed in its territory and prosecuting, accordingly, the delinquent.
Note that the jurisdiction conferred by the ICC Statute in Article 12 (2) (a) for a State seeking to establish the jurisdiction before the ICC is wider than the jurisdiction specified in the Lotus Case for a State that seeks to establish jurisdiction before its domestic courts, for a crime that occurred on board its registered ships (see paragraphs 22 -24 of the referral with regard to Comoros’ refusal to assert domestic jurisdiction. Paragraph 22 is best considered as a political statement over a legal statement indicating the “unwillingness” of Comoros to establish jurisdiction before its domestic courts (see A. 17 of the ICC). A state’s ability to establish jurisdiction before its domestic courts over an individual (eg: for example: territorial jurisdiction, universal jurisdiction etc.) is independent of a recognition, by that State, of the existence of the State to which the individual belongs).
With regard to this incident, one can also have a cross reference to A. 94 ( 7) of UNCLOS.
Each State shall cause an inquiry to be held by or before a suitably qualified person or persons into every marine casualty or incident of navigation on the high seas involving a ship flying its flag and causing loss of life or serious injury to nationals of another State or serious damage to ships or installations of another State or to the marine environment. The flag State and the other State shall cooperate in the conduct of any inquiry held by that other State into any such marine casualty or incident of navigation.
Comoros is a State party to UNCLOS; Israel is not. Unlike 97 (1) of UNCLOS, which appears to oust the jurisdiction of the ICC by granting exclusive jurisdiction to the flag State or specified States, A. 94 (7) gives Comoros latitude to decide who conducts the inquiry.