|by Toby Cadman an international criminal law specialist. He is a partner at Omnia Strategy LLP, a Barrister member at Nine Bedford Row International Chambers in London and a member of the International Criminal Bureau in The Hague.|
|On May 31, 2010, a group of ships attempted to reach the Gaza Strip but were prevented from reaching their destination when members of the Israeli military attacked them in international waters in what was believed to have been a highly coordinated military action. Nine civilians were left dead and scores seriously injured. It is clear that such acts constitute crimes under international law. To this day, the Israeli government has not been held accountable, but that may be about to change. The day is perhaps now synonymous with the Israeli-Palestinian conflict.The “Gaza Freedom Flotilla” was a group of ships organised by six organisations, namely, the Free Gaza Movement, the Turkish Foundation for Human rights, Freedoms and Humanitarian Relief (IHH), European Campaign to end the siege of Gaza, Ship to Gaza-Greece, Ship to Gaza-Sweden, and the International Committee to end the siege of Gaza.
The aim of the flotilla was essentially threefold: To deliver humanitarian aid; to break the blockade; and to focus the world’s attention on the illegality of the blockade.
The blockade was first imposed in 2006. It placed harsh restrictions on the coastal region of Gaza by restricting access by land, sea, and air. It remains in force however, and has in effect turned the Gaza strip into an open-air penal facility. It is recognised that its implementation was on a security basis, however, it has had much wider adverse affects, hampering economic development given that so many goods are banned from import because of the blockade. It is notable that 34 percent of Gaza’s population of 1.6 million are unemployed; 44 percent suffer food insecurity; and 80 percent are almost entirely dependent on donor aid.
On May 31, 2010, while in international waters, approximately 130km off the coast of Israel, the ships comprising the “flotilla” were boarded by at least 13 Israeli naval commandos from both speedboat and helicopter. The argument raised by the Israeli military is that they had acted in self-defence. This does not explain however how the majority of those killed were shot multiple times, including in the back, and at close range.
There is, of course, significant dispute as to what occurred, and as to who initiated the violence. The activists involved will say that Israeli soldiers began shooting immediately.
The testimony of one witness, a former US Marine, is that prior to the Israeli soldiers boarding the vessel, and while the helicopters were approaching, he noticed a fellow activist dead on the deck, suggesting that the vessel had been fired upon from the helicopters.
The Israeli soldiers however state that they only opened fire after being attacked with clubs and knives by those activists on the boat. Despite a number of passengers on the flotilla having recorded the events with still and video cameras all the footage (and the equipment) was seized by the Israeli authorities and remains in their possession. A video released by the Israeli military conveniently stops just before the shooting begins.
There have been two inquiries into the incident, one being the Palmer Report of the UN Secretary General’s Panel. This report was not tasked with investigating whether there were violations of international law, nor did it address evidence that showed the multiple gunshot wounds sustained by the victims. However, the UN Human Rights Council Fact Finding Mission Report did. The team of international law experts involved in the report found that the Israeli Defence Forces (IDF) had acted in violation of international law and there was sufficient evidence to initiate prosecutions for breaches of the Geneva Convention. One of the conclusions of the report was that six of the deceased were summarily executed, taking into account the extent and position of injuries on their bodies.
Israel took issue with the reports, referring to them as biased and flawed. It is worthy of note however, that Israel did not engage with the investigation. What Israel’s criticisms do not address however is the forensic evidence that the ship was in international waters, no final warning was offered by the Israeli forces, and nine civilians lost their lives at the hands of highly trained Israeli military personnel.
In the immediate aftermath of the incident there is compelling evidence of abuse of other passengers by Israeli authorities, including physical mistreatment, harassment, intimidation, unjustified confiscation of belongings, and the denial of timely consular assistance.
It is of concern that following what can only be described as a tragic incident, Israel’s position was one of non-compliance and effectively silence, in the face of widespread international condemnation.
It wasn’t until early 2013 that the Israeli government offered an apology for the incident, and only after the US president brokered a telephone conversation between Turkish Prime Minister Recep Tayyip Erdogan and Israeli Prime Minister Benjamin Netanyahu. Netanyahu apologised for the loss of life, and went on to say that the tragic results were unintentional, and that arrangements would be made for the payment of compensation to the victims’ families. Although an offer of compensation has been made, nothing more has happened and arguably, it has stalled following the initiation of criminal proceedings in Istanbul.
It would appear that one of the conditions being imposed by the Israeli government for the payment of compensation is that the current court proceedings be immediately “stayed”. The danger in accepting this, however, is that the victims will be deprived of justice.
The issue of accountability is critical. Israel is often seen to act with impunity when dealing with Palestinians, violating a host of legal rulings with an increasing degree of frequency. It is quite clear that this position must change.
Following an investigation by the Chief Public Prosecutor’s Office charges were filed on May 28, 2012 at the Istanbul Seventh High Criminal Court against leading members of the Israeli military who were alleged to have planned and carried out the attack, including former IDF Chief of General Staff General Gabi Ashkenazi, Naval Forces Commander Vice Admiral Eliezer Marom, Israeli Military Intelligence Chief Major General Amos Yadlin and Air Forces Intelligence Head Brigadier General Avishai Levi.
There are 490 complainants and victims in the case. They hail from 37 countries and include relatives of the deceased. The charges, under the Turkish Penal Code, include conspiracy to commit murder, attempted murder, voluntary manslaughter, intentional injury, robbery, seizing a sea vessel by the use of force, causing damage to property, and unlawful deprivation of freedom and torture. The first hearing was held on November 6, 2012.
The trial in Turkey is seen as an important step in establishing a process of accountability. This is the first case of its kind filed against Israel.
It is expected that the case in Turkey will be the first of many such cases filed seeking to hold Israel criminally liable.
In the next hearing which is scheduled to take place on May 25, 2014, the Istanbul High Court is expected to issue arrest warrants against the four Israeli defendants. What will follow is likely to be a lengthy extradition process that will test Israel’s commitment to its extradition treaty with Turkey. It will also test Israel’s commitment to justice.
This case is not just about politics. It is about ensuring that the victims see justice. It is about ensuring that all persons are equal before the law irrespective of nationality and political standing. The conduct of the IDF is alleged to constitute crimes under international law. Israel has thus far prevented this process from being brought before a court of law.
If the Israeli government’s apology and offer of compensation to the victims is to have any meaning, it must include ensuring that those responsible are brought to justice before a court of law and the victims and their families are properly compensated. Whether a trial takes place in Istanbul, Tel Aviv or The Hague is not particularly relevant as long as a legitimate judicial process is followed. An offer of compensation without ensuring accountability will amount to little more than blood money.
Toby Cadman is an international criminal law specialist. He is a partner at Omnia Strategy LLP, a Barrister member at Nine Bedford Row International Chambers in London and a member of the International Criminal Bureau in The Hague.
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