BREAKING NEWS: Gaza flotilla attack – calls for intenational criminal court to step in October 9, 2010

by Afua Hirsch  -  The Guardian -  8 October 2010

The international criminal court is being urged to prosecute members of the Israeli defence force for the raid on a Gaza-bound aid ship. Turkish victims have formally requested an investigation, the Guardian has learned.

Lawyers acting for Turkish citizens injured or killed when Israel intercepted the flotilla in May have written to Luis Moreno Ocampo, the court’s prosecutor, claiming there is an “overwhelming” case for prosecution.

The request is a significant step towards a criminal investigation by the court, which experts say has jurisdiction to prosecute those involved in the raid despite Israel not recognising its jurisdiction.

“The attack on the flotilla occurred in international waters, which directly violated many parts of international law as well as international public and criminal law,” said Ramazan Ariturk, a partner at Elmadag Law Office, the Turkish legal body that is representing the Turkish victims and the human rights group IHH. “The crimes committed by Israeli Defence Forces should be prosecuted and the International Criminal Court is the sole authority which is able to do that.”

There is mounting pressure on Israel after a UN report into the incident, in which nine Turkish activists were killed, accused Israel of violating international law.

The report, published last month, said Israel “betrayed an unacceptable level of brutality” during the raid on the flotilla and it “constituted grave violations of human rights law and international humanitarian law”.

Israel condemned the report as “biased and distorted”. It has created its own state-appointed inquiry, headed by retired supreme court justice Jacob Turkel.

An Israeli government spokesperson said: “The event is being investigated by Israel including international observers, as well as a UN investigation initiated by the UN secretary general. Further investigations are redundant and unnecessary, and will contribute to further alienation between otherwise friendly countries.”

The likelihood of Israel being prosecuted for its actions in Gaza has long attracted controversy. Last year a group of leading lawyers publicly accused Israel of war crimes following Operation Cast Lead, citing the blockade and destruction of civilian infrastructure in Gaza as evidence.

Neither Israel nor the Palestinian territories are parties to the Rome statute, which established the international criminal court. An investigation of incidents involving the two countries is possible only after a reference from the UN security council.

But the Turkish victims’ lawyers say the involvement of Turkey with the Mavi Marmara and the fact it was sailing under the flag of the Comoros Islands give the court  jurisdiction. Both countries are members of the ICC.

“Based on the overwhelming volume of materials and evidence in our possession, amassed since the date of the incident itself, including expert opinions obtained from prominent specialists in international criminal law, we are of the view that the Israeli attack on the Gaza flotilla involves crimes which fall unambiguously within the jurisdiction of the court,” the letter says.

The victims’ calls were backed up last week by Desmond da Silva, a QC and former UN war crimes prosecutor who said there were technical grounds for asking the ICC to intervene.

Afua Hirsch is the Guardian’s legal affairs correspondent. She has practised at the bar in criminal defence and public law and teaches constitutional and human rights law.

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