International court preps for possible Marmara probe

ICC establishes three-judge procedural panel; prosecutor has yet to decide whether to launch a formal investigation

Haviv Rettig Gur is The Times of Israel's senior analyst.

Israeli Navy vessels escort the Mavi Marmara to the port of Ashdod, May 31, 2010. (Kobi Gideon/Flash90)
Israeli Navy vessels escort the Mavi Marmara to the port of Ashdod, May 31, 2010. (Kobi Gideon/Flash90)

The president of the International Criminal Court, Sang-Hyun Song of South Korea, has assigned a three-judge panel to examine procedural requirements for moving forward with a war crimes suit against Israel over the 2010 raid on a flotilla to Gaza.

Nine Turkish passengers were killed on the flotilla’s flagship, the Mavi Marmara, and several Israeli commandos were badly wounded in clashes after they attempted to commandeer the ship. The flotilla was attempting to break the Israeli naval blockade of the Hamas-ruled Gaza Strip.

While the ICC emphasized in a statement that the move was “a procedural matter only, and is not the beginning of an investigation,” the appointment puts in place the legal apparatus for moving forward with an investigation. The power to launch that investigation resides with the ICC prosecutor, Gambian attorney Fatou Bensouda, who launched “a preliminary examination” in May to determine “whether the criteria for opening an investigation are met,” she told Reuters at the time.

The examination was opened following a complaint filed on May 14 by the Muslim African island nation of Comoros, where the Mavi Marmara was registered, through the Istanbul-based law firm Elmadag, which represents the Marmara victims’ families.

Comoros’ complaint (PDF) references Article 12(2)(a) of the Rome Statute that established the court, “which allows the ICC to exercise its jurisdiction over crimes committed on board a vessel, if the State of registration of that vessel is a State Party to the ICC,” the ICC noted. Israel, like the US, Russia and others, is not a state party to the ICC, but Comoros is.

The new panel is composed of Silvia Fernández de Gurmendi of Argentina, Hans-Peter Kaul of Germany and Christine Van den Wyngaert of Belgium.

The Mavi Marmara was part of a flotilla that sailed toward Gaza to try to break Israel’s naval blockade. The Israeli Navy intercepted all other vessels in the flotilla without resistance, but commandos were attacked with metal bars and clubs when they boarded the Marmara on May 30, 2010. During the ensuing melee, the commandos opened fire and killed nine passengers.

The incident exacerbated already strained diplomatic ties between Israel and Turkey. In March, in a phone conversation arranged during the final moments of US President Barack Obama’s visit to Israel, Prime Minister Benjamin Netanyahu apologized to his Turkish counterpart, Recep Tayyip Erdogan, for operational errors made in the raid and promised compensation for the victims and their families. Negotiations are said to be nearing completion.

“If this will not bring about results, we’ll know that certain countries are influencing the court,” Ramadan Ariturk, one of the families’ attorneys, told the Anatolia Turkish news agency.

Previous attempts to engage prosecutors in an investigation of Israel have stalled due to lack of jurisdiction.

The ICC has jurisdiction over its members, over cases that are referred to it by the UN Security Council and over events that take place on the territory of member states. In the filing, lawyers from the Istanbul-based Elmadag argued that events that took place on the Mavi Marmara should be considered as having occurred on the territory of Comoros.

The Associated Press contributed to this report.

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