Great (Israel) Cases Make Bad (International) Law

Yesterday, the ICC pre-trial chamber by a 2-1 vote ordered the ICC prosecutor to reconsider its decision to close its investigation into the Mavi Marmara flotilla incident. I heard about this decision via a column by Bar-Ilan and San Diego law professor Avi Bell, who lambasted it as a completely unprecedented decision that fails as a matter of law and whose legal determinations will by necessity only be applied against Israel. This struck me as intuitively plausible -- I've long thought that international legal determinations made in Israel-related cases tend to be tickets good for this ride only.

But I knew that Bell has somewhat of a conservative reputation on Israel-related issues, and since international law is not my area of speciality, I was curious to hear what more left-wing and Israel-critical voices had to say on the subject. The person I particularly had in mind was Kevin Jon Heller, a international law specialist at the University of London who has been a harsh critic of Israel's behavior from an international law perspective for sometime. That said, just as Bell's more conservative slant doesn't mean that I haven't found his analysis to be thoughtful, likewise I've always found Heller's writing illuminating despite his often adversarial stance towards Israel.

So I was happy to see that Kevin has written a lengthy analysis of pre-trial chamber's decision. And -- in substance though perhaps not in angle of approach -- he agrees with Bell entirely. Heller describes the decision as "deeply problematic and extremely dangerous decision — nothing less than a frontal assault on the OTP's prosecutorial discretion," attacks it as fundamentally misunderstanding the law regarding "gravity" of the alleged offense, and accuses it of applying the wrong standard of review in a bid to "maximi[ze] its own power". He also (in a comment) claims to be "shocked by the nasty tone of the decision", characterizing comments in the opinion as "exceptionally uncivil, unnecessary, and unprofessional."

Heller's post is more technical than Bell's is (which makes sense, since Heller is writing on a international law blog and Bell in a general news column), and so he focuses more on the damage this precedent would do to the ICC as an institution. The crux of his analysis (though you should read him, the expert, rather than me, the novice) focuses on how the decision misapplies the concept of "gravity". Obviously there are many human rights violations that occur around the world, and the ICC cannot investigate all of them. One main guideposts for the exercise of ICC prosecutorial discretion is whether the case is sufficiently "grave". In this litigation, the "case" gravity was an attack on a blockade-running ship that resulted in approximately 10 deaths. But, the prosecutor argued, "case" gravity is not all that matters: it also is relevant who the alleged perpetrators were (low-level grunts, or top military or political leaders) and the "situational" gravity (that is, the broader context in which the particular alleged wrong occurred). The latter, incidentally, is not as one might expect the "situation" in Israel or Turkey. It's the situation in The Comoros, of all places. Why? Because unlike Israel or Turkey, the Comoros is a party to the ICC convention, and the hook for ICC jurisdiction is that one of the flotilla ships was Comoros-flagged. The prosecutor basically reasoned that (a) there was no basis for concluding that any high-level Israeli officials could be found to have engaged in any rights violations and (b) that as part of the Comoros situation this event was an isolated one-off, hence, the allegations lacked sufficient gravity for the ICC to investigate. And this is what the-pre-trial chamber rejected. It basically collapsed the entire inquiry of gravity into "case" gravity -- is 10 deaths sufficiently grave? -- and answered "yes", regardless of the surrounding situation and regardless of whether any high-level officials are implicated. And this, as Heller observes, is completely unworkable as a legal rule -- it would compel the ICC to prosecute dozens if not hundreds of cases that previously would have been obviously of insufficient gravity.

Of course, the counterargument to that is precisely what Bell and I suspect -- that this precedent won't be one because it won't be applied anywhere else. The ICC prosecutor will not, in fact, prosecute every case where there are roughly ten deaths, and the pre-trial chamber will not disturb that decision once made. While he does not explicitly echo Bell's assertion that the putative rule of decision here will be applied to Israel and nowhere else, Heller seems to think that the decision having no practical significance outside the Israel-context is a more likely outcome than the complete overload of the ICC structure.

The legal rules announced in this case, and the broader willingness of the pre-trial chamber to micromanage the prosecutor's decision, will not have any broad resonance. They will not apply to other cases or controversies, they will not meaningfully alter the governing legal regime. They will simply be the latest datapoint for an undeniable pattern: Israel gets treated differently from any other country in the international legal arena. People worried about the effects on the international legal system as a whole can rest easy.