Monday, November 09, 2015

Great (Israel) Cases Make Bad (International) Law, Part II

Back in July, I blogged on an ICC ruling reversing a prosecutor's decision not to open a case in the Mavi Marmara flotilla incident. Comoros had filed a complaint alleging that the killing of 10 persons aboard the boat during the IDF raid was a war crime; the ICC prosecutor decided that the incident lacked the "gravity" that would compel an ICC investigation (if you're wondering "why Comoros?", it's because neither Turkey nor Israel is an ICC party, but the ship was Comoros-flagged).

The ICC panel's decision ordering the prosecutor to reconsider filing the case was notable in that it united right-wing general Israel-defender Avi Bell and left-wing general Israel-critic Kevin Jon Heller in pretty vitriolic criticism. Both agreed that the rule the panel articulated regarding "gravity" was legally novel and practically unworkable; Bell explicitly and Heller implicitly contended that the decision consequently would have no bearing outside the Israel context (where, it seems, the normal rules never apply). My post above post (which links to Bell and Heller's arguments) provides more detail, but put simply there is no way that the ICC can be mandated to investigated ever case alleging roughly 10 killings, and given the identity of the complaining party (Comoros) there is no serious argument that the event was part of a larger "situation" in the Comoros that exacerbates the salience of the incident.

In any event, by a 3-2 vote an appellate panel has affirmed the initial decision ordering reconsideration by the prosecutor. I haven't read the opinion so I don't know if it takes any steps to cure the defects Bell and Heller identified, and I look forward to their commentary. But at first glance, this seems to be a continuation of a very deleterious trend: International law principles surrounding Israel tend to be tickets good for this ride only. And that is a principle that is destructive of international law and wholly incompatible with principled commitments to equality.

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