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The ICC on trial

January 23, 2014 at 2:51 pm

The International Criminal Court (ICC) has announced that it will launch a preliminary inquiry into Israel’s raid on a Gaza-bound flotilla, which resulted in the deaths of nine Turkish activists. The ICC’s chief prosecutor, Fatou Bensouda, said that the inquiry would establish whether a full investigation into the raid would be justified.


In May 2010, Israel was several months into a harsh naval blockade against Gaza. Though this was ostensibly to prevent weaponry from entering, it was also limiting the flow of basic foodstuffs and humanitarian supplies. The Free Gaza Flotilla, which had more than 600 pro-Palestinian activists on board, sailed towards Gaza with the aim of breaking this blockade and delivering food and medicine. On 31 May, Israeli forces boarded the lead vessel in the flotilla, the Turkish ship, Mavi Marmara, via speedboats and helicopters. Nine Turkish activists were killed.

Exactly what happened on the ship has been hotly disputed. The Israeli Defence Force (IDF) claimed that its commandos acted in self-defence after activists attacked them with makeshift weapons. This was vehemently denied by those on board. The attack drew international condemnation, and seriously damaged relations between Israel and Turkey. A 2011 UN inquiry found that the Israeli soldiers’ actions were “excessive and unreasonable”. However, it also concluded that the blockade – which has since been relaxed, though not lifted – “was imposed as a legitimate security measure” which “complied with the requirements of international law”.

Earlier this year – three years after the raid took place – Israeli Prime Minister Binyamin Netanyahu apologised to Turkey for “any errors that could have led to loss of life”, and agreed to compensate the families of the dead. The two countries are now working on repairing their severed diplomatic ties.

But, clearly, that was not the end of the road for the Mavi Marmara controversy. The ICC is an international court which tries crimes of genocide, war crimes, crimes against humanity and the crime of aggression. Its involvement here will come as a surprise to some: Israel is not a signatory to the Rome Treaty which established the court, so it does not automatically come under its jurisdiction. Several previous attempts to involve The Hague in the Israel-Palestine conflict have floundered due to this.

This inquiry, however, has been launched after a request from the Indian Ocean island nation of Comoros, where one of the vessels that was raided the Mavi Marmara was registered. This archipelago island nation off the coast of Africa is a party to the Rome Statute, and so the ICC is legally obliged to investigate.

So what is the likely outcome? The Jerusalem Post’s report on the subject points out that The Hague has so far stayed away from events in the Palestinian territories, adding: “Few preliminary examinations ever lead to a full investigation, let alone a trial.”

Lawyers from the Istanbul-based firm Elmadag, who argue that events should be considered as having taken place on the territory of Comoros, are representing the families of those killed on the Mavi Marmara. “If this case fails to produce a result, this will show that this court is under the hegemony of certain countries and is used only to make some countries toe the line politically,” one of the lawyers told the Anatolia news agency. The charge of the ICC being toothless and biased against certain countries is nothing new; but its involvement in the Israel-Palestine conflict – however tangentially – certainly is. For now, we can only await the results of the preliminary inquiry. 

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.