by Wajiha Rais
Since the Palestinian Authority acceded to the Rome Statute and lodged a declaration recognizing the International Criminal Court’s (ICC) jurisdiction, the question has been whether Prosecutor Bensouda will open an investigation into the Situation in Palestine (SIP). An issue she must first consider is whether, under Article 17(1)(d), the SIP is grave enough to justify an investigation. Comparative analysis reveals that the SIP passes the Article 17 gravity requirement because it is graver than the Situation in Mali (SIM), which the Prosecutor found to be sufficiently grave for investigation. Thus, the Prosecutor should also investigate the SIP. If she declines to investigate, her decision, it is fair to say, will be politically influenced (assuming that other requisites to investigation, including Article 53(2)(c) interests of justice, are met). Furthermore, the Prosecutor will likely base such a refusal on insufficient gravity given the fluid nature of the gravity assessment, which makes it vulnerable to manipulation.
Assessing gravity involves balancing four factors: scale of the crime, its nature, the manner of commission and its impact. A deficiency in one factor can be compensated by excess in another. A factor-by-factor comparison between the killing of hors de combat in the Aguelhok incident in Mali and the targeting and killing of Palestinian civilians during Operation Protective Edge in Gaza reveals that on the whole the SIP is graver than Mali. Since Mali passed the gravity threshold for investigation, so should Palestine. Information for each factor relating to the Aguelhok incident, below, is taken from the Prosecutor’s report.
Scale
The Malian incident involved between 70 and 150 summary executions. Meanwhile, 120 Palestinians were killed in the assault in Shujaiyah alone. According to the UN Commission of Inquiry, 216 people were killed in only fifteen of the hundreds of air strikes targeting residential structures. Additionally, forty-seven civilians were killed in attacks on UNRWA schools without military necessity. Even though this is only a partial compilation of Palestinian deaths, when it comes to scale, Palestine is clearly graver than Mali.
Nature of Crime
Crimes in both Situations are of the same nature, falling under Article 8(2)(c)(i) as crimes involving violence, especially murder, against people not taking an active part in the hostilities. The ICC noted, “The killing of combatants hors de combat is no less grave than the killing of civilians.” Thus, on this particular factor, both Mali and Palestine rank the same.
Manner of Commission
Combatants in Mali were tortured and their bodies mutilated. In Palestine, Israeli soldiers used precision-guided missiles, gun-fire and white phosphorous. In many instances, the UN Commission and human rights organizations suspect that civilians were killed as a matter of policy, disproportionately and without military necessity. In Shujaiyah, for example, Israeli soldiers allegedly drew an imaginary, arbitrary red line and shot anyone who crossed it, whether civilian or combatant. Several families were shot in cold blood inside their homes and some shot while waving white flags.
It is difficult to compare the gravity of the manner in which international crimes are committed. Is killing by torturing and then mutilating bodies (as happened in Mali) graver than killing using precision-guided missiles against schools and children waving white flags (as happened in Palestine)? Despite the highly subjective nature of this factor, it is unlikely that the Prosecutor will find the manner in which crimes in Palestine were committed to be significantly less grave, if at all, than Mali’s.
Impact
While in the SIM, condemnation came from local officials and civil society representatives, the SIP attracted condemnation from across the globe. The UN Security Council, Ban Ki Moon, world leaders and even the White House condemned or expressed grave concern over the Israeli assault. The violence in Palestine had a much larger impact than that in Mali.
All in all, Palestine is graver than Mali in scale and in impact while the nature of the crime is the same in both cases. Regarding the manner of commission, it is unlikely that Palestine would be considered significantly less grave, if at all. Thus, over all, Palestine is graver than Mali and since Mali passed the gravity threshold for investigation, so should Palestine.
Thus, in the event the Prosecutor declines to investigate claiming insufficient gravity, her decision will be politically motivated. Moreover, insufficient gravity (as opposed to interests of justice) is most likely how she will justify her decision given the fluid nature of the concept.
Assessing gravity is not straightforward due to a lack of clarity about the way factors are prioritized vis-à-vis each other. Are they all weighted equally or do they vary? If the scale of the crime is prioritized, the Prosecutor can find that widespread illegal detention passes the gravity threshold while limited instances of rape or torture do not. But if the nature of the crime is prioritized over its scale, she can reach the opposite result. Theoretically, the Prosecutor can find almost any crime sufficiently or insufficiently grave by simply highlighting one factor and downplaying another. Additionally, the four factors are non-exhaustive and unfixed. The Prosecutor is free to change them and has done so a few times, further rendering the gravity assessment vulnerable to manipulation.
In conclusion, Palestine passes the Article 17 gravity threshold and the Prosecutor should open an investigation into the SIP. If she declines to investigate, it is fair to say that she succumbed to political pressure. She will likely base a refusal to investigate on insufficient gravity given the fluid nature of the gravity assessment. A more determinate gravity standard that minimizes the possibility of manipulation will be better for justice and for the perceived legitimacy of the Court.
Wajiha Rais is an Articles/Comments Editor at the FIU Law Review. Ms. Rais can be reached at wrais001@fiu.edu.