The ICC Prosecutor did not decide Gaza is occupied (or anything else of substance)

|The Volokh Conspiracy |

The Prosecutor of the International Criminal Court announced last week that she would not be proceeding with an investigation of Israel regarding the Gaza Flotilla incident (Mari Marvara) in 2010. The basis for the dismissal was jurisdictional—the case did not meet the Court's statutory requirement of gravity. In other words, the crimes alleged, even if true, did not rise to the necessary level of badness to warrant the attention of a court designed to deal with mass atrocities.

The dismissal was easy and predictable. The entire matter was a nuisance suit from the beginning, and no one thought it had any chance of getting off the ground. It could have just as easily been thrown out on complementarity grounds: the ICC can only act when nations with jurisdiction over the crimes are "unable or unwilling" to investigate. Israel has already investigate (and found no wrongdoing), while Turkey is prosecuting the Israeli personnel involved, and proceedings that certainly not designed to shield Israel from immunity.

Oddly, the Prosecutor's memo said nothing about this other major problem with admissibility. It did, however, entertain a long and detailed discussion of some more merits-sounding issues, in particular, whether Gaza is occupied. The prosecutor said that it would consider—for purposes of determining jurisdiction—that Gaza is occupied. Given the disposition of the case, it seems odd that the prosecutor spent 40 pages of a 60-page report on it (unusually long as far as these things go). It is reminiscent of Marbury v. Madison, and not in a good way: recall that Justice Marshall elaborated at length on the government's naughtiness before admitting he is actually not seized of the matter at all.

It is worth noting what the ICC did NOT rule: it did not rule anything. That is because the decision in question was not a ruling by the Court, but rather preliminary determination by the prosecutor that the matter is not admissible, and thus cannot proceed. The memo explaining this is not a judicial ruling, and it is not precedential.

The discussion of Gaza is dicta within dicta within dicta. The OTP report itself is not a judicial document; there were multiple other grounds to drop the investigation; even for the jurisdictional issue it was relevant to, the question of occupation was not in the prosecutor's own admission "not necessary," and the entire issue was determined not merely on the pleadings, but pre-pleadings—before any factual investigation or the participation of Israel.

Not surprisingly, the conclusions regarding Gaza were explicitly tentative. Thus the OTP memo explained that the characterization of Gaza as occupied is not "conclusive," is made only for a "limited purpose," and involves a "case of doubt." That is enough qualifications and limitations to put if far out of the realm of even the OTP "ruling" that Gaza is occupied.

Even with those disclaimers the discussion was entirely gratuitous. The frolic seems, at best, like a rhetorical sop to those who would otherwise be angered by the ultimate result.

A subsequent post will examine in greater depth the Prosecutor's dictum about Gaza being occupied on its own merits.