Comoros has referred the action of Israeli troops in boarding the flotilla headed to Gaza on 31 May 2010 to the International Criminal Court. The ICC Prosecutor has announced that she is opening a preliminary examination of the situation and it now remains to be seen whether this will lead to a proper investigation and perhaps even charges being brought by the ICC against Israeli troops or officials. Israel, of course, is not a party to the Statute of the ICC, but this does not itself mean that the ICC cannot exercise jurisdiction over Israeli nationals or officials (see my 2003 article on this issue). Comoros is a party to the Statute and the main vessel on which the Israeli actions took place, the Mavi Marmara, was registered in Comoros. Under Article 12(2) of the ICC Statute, the Court may exercise jurisdiction not only to nationals of State’s party to the ICC statute but also, crucially, where:
(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 [is a party to the Statute];
Since the Israeli action took place on a vessel that is registered in a State party to the ICC Statute, the action is within the jurisdiction of the ICC. Comoros also points out that a second of the six vessels in the Gaza flotilla boarded on 31 May 2010 – the M.V. Eleflheri Mesogios or Sofia - is registered in Greece which is also a party to the ICC. In addition, Comoros says that a further vessel boarded by Israel a week later – the MV Rachel Corrie- is registered in Cambodia, which is also an ICC State party. It must also be taken as referring the incident regarding those other vessels to the ICC (assuming there were any incidents committed on board those vessels that would amount to crimes within the jurisdiction of the ICC). It is worth noting that a State party is entitled to refer any situation involving crimes within the jurisdiction of the Court to the prosecutor. Thus Comoros is entitled to refer a matter that did not occur within its territory to the ICC.
Israel’s actions with regard to the flotilla have already been the subject of investigations by Israel, Turkey and by two UN bodies. The allegations that actions on board the vessels were contrary to international law finds support in the reports by the UN commissions (see Yuval Shany’s discussion of Human Rights Council’s Fact Finding Commission here, and Douglas Guilfoyle , Tamar Feldman and Marko’s discussion of the Palmer Report here, here here). However Israel’s Turkel Report comes to the opposite conclusion (see discussion by Amichai Cohen and Yuval Shany here). It is to be noted that the referral by Comoros comes just days after it was announced that Israel and Turkey were close to reaching an agreement on compensation for the Turkish victims of the incident.
The referral by Comoros is significant for the ICC for a number of reasons and as outlined below is likely to test political support for the Court. While action by the Court against Israel is likely to prove unpopular in some circles, failure by the Court to act in a situation involving Israel, and perhaps more importantly failure to act on a referral by an African State against a non-African State, will perhaps prove even more unpopular in a constituency crucial to the ICC.