Should Israel be worried of new ‘Marmara’ probe?

Turkish law firm Elmadag files a complaint to the ICC on behalf of the Comoros Islands regarding the 2010 IDF raid, saying the Gaza-bound flotilla flew the Comoros flag, incident occurred on Comoros's territory.

By YONAH JEREMY BOB
Mavi Marmara 390 (photo credit: Stringer Turkey / Reuters)
Mavi Marmara 390
(photo credit: Stringer Turkey / Reuters)
International Criminal Court prosecutor Fatou Bensouda announced on Tuesday that she was opening a preliminary examination based on the Comoros Islands’ complaint against Israel regarding the 2010 Mavi Marmara flotilla incident.
Who? That’s right – not the Palestinians and not Turkey, but the Comoros Islands. Or at least the Turkish law firm Elmadag (it’s unclear whether it is acting independently, or secretly in conjunction with the Turkish government), filing “on behalf” of Comoros (also unclear how much of the impetus for the filing came from Comoros and how much from the law firm.)
For those who have not memorized all of the world’s smaller countries, the Comoros Islands are off the southeastern coast of Africa, near Madagascar. They, or Elmadag, have catapulted from obscurity onto the big-time stage of the Israeli-Palestinian- Turkish conflict, because technically they say that since the Marmara registered and flew the flag of Comoros about two weeks before the incident, the incident actually occurred on Comoros’s “territory.”
So four years after starting a still-unsuccessful campaign to bring Israel before the ICC – including achieving statehood recognition from the UN General Assembly – the Palestinians and their supporters may have found an unlikely end-run to give Israel legal headaches.
How worried should Israel be? Well, Comoros’s filing gets past the statehood threshold problem that has been holding up the Palestinians so far; no one says Comoros is not a state.
But the statehood issue is only one of several jurisdictional- threshold questions that can stop a case from going from a preliminary examination to a full investigation, an on to an indictment.
So there are many preliminary legal issues that could stop this train before it leaves the station, such as whether registering and placing a flag on a ship from Turkey some two weeks before an incident can really make the ship Comoros’s “territory.”
Another major difficulty is Comoros’s claim that Israel has failed to investigate itself.
The ICC does not intervene where a country impartially and promptly investigates allegations of crimes in its territory (even if the investigation does not result in convictions).
Comoros cites the vital nature of the IDF to Israel as evidence that Israel cannot investigate itself. It also cites the allegations of possible war crimes from the UN Human Rights Council Report on the flotilla, arguing that these are allegations the ICC must investigate.

Stay updated with the latest news!

Subscribe to The Jerusalem Post Newsletter

Subscribe Now
The problem is that the UN Palmer Report, sponsored by the Secretary-General’s Office, came to very different conclusions than the UN Human Rights Council Report did – such as declaring Israel’s blockade of Gaza legal.
The Palmer Report does say that Israel used excessive force, but it also recognizes that IDF soldiers were under attack, making war crimes arguments difficult.
Besides the Palmer Report, the Turkel Commission Reports I and II investigated the flotilla in detail, including calling the prime minister, defense minister, IDF chief of staff and others to testify. Along with independent observers, it found that the mistakes Israel may have made were not criminal. The second part of the report, while recommending 19 changes to the country’s system of self-investigations, overall pronounced Israel able to investigate itself objectively.
Comoros ignores these documents, which could undermine its credibility with the ICC prosecutor.
There is also a “gravity” requirement, meaning the ICC only investigates the most serious war crimes, such as murder on a massive scale, usually arising out of extended and widespread hostilities.
Comoros tries to enlarge the volume of the alleged crimes by focusing not only on the small number of dead activists, nine, but also on the 600 activists it says were otherwise victimized.
It cites recent ICC cases saying that the gravity requirement is subjective, not objective, and that drafters of the Rome Statute – which governs the ICC – specifically left out the number of dead victims required to open a case.
But reference to the cases the ICC has taken show that there are no similar cases with as few as nine dead in one situation, and the allegations regarding the 600 passengers appear to mix and match alleged crimes that might be ICC-worthy, with allegations that sound closer to inconvenience than to a reason for a war crimes trial.
With all of these question marks, Israel probably does not have much to worry about, and the bigger question is why Comoros- Elmadag has chosen this moment to essentially re-file old claims that were filed in 2010 and went nowhere.
How Bensouda handles the case may reveal more, but with the wind blowing against the sails of Comoros’s legal attack, the most likely motive for the move is a desperate attempt to undermine the Turkey-Israel deal that is on the verge of putting the entire incident in the past.


Related Tags
Mavi Marmara