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
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
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
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
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.
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.
ignores these documents, which could undermine its credibility with the ICC
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.
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
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.
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.
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