ICC begins preliminary probe into ‘Mavi Marmara’

Turkish lawyers make referral on behalf of Comoros Islands; Erdogan takes father of Turkish-American killed on flotilla to DC on US visit.

Mavi Marmara 390 (photo credit: Stringer Turkey / Reuters)
Mavi Marmara 390
(photo credit: Stringer Turkey / Reuters)
Even as Israel and Turkey are deep in talks over compensation payments to the families of the nine Turks killed on the Mavi Marmara, lawyers representing the victims made a referral regarding the incident at the International Criminal Court on Tuesday on behalf of the Comoros Islands.
The ICC’s prosecutor, Fatou Bensouda, said in a statement that she was obliged to open a preliminary examination following a referral from the Indian Ocean island nation where the Mavi Marmara was registered.
According to an article in Today’s Zaman, the Comoros Islands, a member of the ICC, gave authorization to file the suit. It is one of only 34 countries in the world that does not maintain diplomatic ties with Israel.
A foreign ministry official stressed that the suit was not filed on behalf of the Turkish government. Had Ankara filed the suit, it would have run contrary to the understandings brokered by United States President Barack Obama whereby Israel would apologize for the incident, which it did, and pay compensation to the families of those killed, in return for a normalization of Israeli-Turkish ties and an end to Turkish legal proceedings against Israel.
A Foreign Ministry spokesman said the preliminary investigation will determine whether the ICC has jurisdiction over the case, and – if it does – whether it has already been heard by other competent legal bodies.
Few preliminary examinations ever lead to a full investigation, let alone a trial. There have been numerous attempts over the years to involve the court in The Hague in the Israeli-Palestinian conflict, but it has so far declined to investigate events in the territories.
The hope in Jerusalem is that the ICC will not hear the case, acknowledging that it has already been heard by a respected Israeli inquiry commission – the Turkel Commission that was overseen by two international observers – as well as by the United Nation’s Palmer Commission.
The Palmer Commission upheld the legality of Israel’s naval blockade of the Gaza Strip, but took the IDF to task for using disproportionate force in enforcing the blockade.
A senior government official called the submission to the ICC “an abuse of process.” The official added that with the submission “being three years after the event,” the event “not meeting the gravity requirement” (the ICC typically only handles cases in which many more persons were killed) and other anomalies, “it is hard to see it going anywhere.”
The referral from the Comoros was relayed to the ICC by a Turkish law firm, Elmadag.
One argument that Elmadag made was that the ICC must take the case, since Israel is allegedly unable to investigate its own military.
Elmadag’s submission said that Israel has “no political will to allow for independent and impartial investigations and prosecutions to take place."
This of course emanates from the fact that “given the turmoil history of Israel since its creation, the IDF is highly praised as an important arm of the state for the important role it plays in the defence of the country.”
Interestingly, the submission focused more on the UN Human Rights Council Report on the incident (which was more negative toward Israel) and less on the UN Palmer Report and Israel’s own quasi-independent Turkel Commission Reports I and II (which were all more positive toward Israel).
For example, the submission does not mention that the UN Palmer Report declared Israel’s blockade legal, and only mentions sources which declare the blockade illegal.
It is also unclear whether the fact that Comoros does not recognize the State of Israel may complicate the legal proceedings.
In a related matter, Today’s Zaman reported Wednesday that Turkish Prime Minister Recep Tayyip Erdogan asked the father of Furkan Dogan, a Turkish-American killed on the Mavi Marmara, to join his official delegation to Washington.
Erdogan is scheduled to meet Obama on Thursday.
According to the paper, Dogan asked Erdogan to deliver a letter about his son to Obama , but Erdogan told him: “I can give this letter [to him], but it is better if you give the letter to him yourself. I will include you among the members of the official delegation.”
Reuters contributed to this report.