ATTORNEY & MEDIATOR GULDEN SONMEZ
THE PROCESS IN THE INTERNATIONAL CRIMINAL COURT
On 14.05.2013 a criminal complaint was filed at the Hague-based International Criminal Court on behalf of the Union of the Comoros, the flag-state of the Mavi Marmara vessel, against Israeli officials and soldiers for the crimes committed onboard Mavi Marmara. Greece and Cambodia, State Parties to the Rome Statute, were also included in the filing as parties.
In its decision on 06.11.2014, the ICC Prosecutor stated that Israel has committed war crimes and as Israel continued to have effective control over Gaza it has the status of an occupying power and that all the passengers of the Flotilla had the status of protected civilians under international law and the Israeli soldiers carried out the attack despite knowing the passengers were civilians. The the ICC Prosecutor further reinforced her dismissal of Israel’s claims of self-defence by stating that ‘the autopsy reports of those killed indicate that they have received multiple shots in the head, legs and neck and at least 5 of the passengers who were killed were shot at close range.’ Despite finding crimes may have been committed by Israel, the ICC Prosecutor refused to open an investigation into the attack on the basis that it did not carry sufficient ‘gravity’ to fall within the jurisdiction of the ICC to justify further action by the Office of the Prosecutor.
​
Israel has made all kinds of intense efforts to be free from legal action and to eliminate the risk of being punished, and to maintain its unaccountable and unlawful policies.
On 29 January 2015, the lawyers of the Government of the Union of the Comoros and the Mavi Marmara victims filed an Application for Review against the ICC Prosecutor’s decision not to investigate on the basis of ‘insufficient gravity’ despite finding that Israel committed WAR CRIMES in the Mavi Marmara attack. The Pre-Trial Chamber have accepted the arguments by the lawyers and found that the ICC Prosecutor committed material errors in its determination of the gravity of the potential case(s) and requested the ICC Prosecutor to reconsider her decision. The ICC Prosecutor subsequently appealed this decision despite having no procedural right to do so. On 6 November 2015, the Appeals Chamber declared the appeal inadmissible. Following this, the ICC Prosecutor began reconsidering her decision. On 29 November 2017 the ICC Prosecutor eventually reaffirmed her earlier decision not to investigate. The lawyers of the Comoros and the victims have filed an application for judicial review with the Pre-Trial Chamber, which on 15 November 2018, again decided that the ICC Prosecutor had erred in her decision and requested her to reconsider and to reach a final decision by 15 May 2019 to prevent further prolonging of the process. The ICC Prosecutor appealed this decision.
Following these developments, the Appeals Chamber had decided to hold a hearing on 1 May 2019 to hear the ICC prosecutor and lawyers of the victims. Besides the lawyers, families of some of the martyrs, fleet organisation representatives and some victims were also present in the hearing. As is known, by also emphasising on the threats of USA to the ICC, Israel sought to manipulate the court.
On 2 September 2019, the Appeals Chamber delivered its judgment confirming that the ICC Prosecutor must reconsider again her decision not to open an investigation and that this reconsideration must be done in accordance with the Pre-Trial Chamber’s first decision of 16 July 2015. The Appeals Chamber was clear that the Prosecution must correct all the errors identified by the Pre-Trial Chamber, not make the same mistakes again and must follow the Pre-Trial Chamber’s instructions on how to apply the law. The Appeals Chamber also emphasised that the ICC Prosecutor was wrong in thinking that she is free to dismiss the instructions of the Pre-Trial Chamber.
The ICC Prosecutor was ordered to deliver her decision on 2 December 2019 on which she once again reaffirmed her earlier decisions not to investigate.
Following this, lawyers of the Government of Comoros filed a Judicial Review application with the Pre-Trial Chamber asking it to direct the Prosecutor to reconsider her latest decision not to open an investigation in accordance with the Pre-Trial Chamber’s decision of 16 July 2015. The lawyers also asked that the Pre-Trial Chamber should make all necessary findings and take all appropriate steps to ensure that the Prosecutor does not yet again fail to comply with the holdings and findings of both the Pre- Trial Chamber and the Appeals Chamber, including by imposing sanctions on the OTP.
The legal process continues.
THE PROCESS IN THE UNITED NATIONS
The UN Human Rights Council is an intergovernmental body comprising 15 members of the African countries, 12 members of the Asian countries, 5 members of the Eastern European countries, 11 members of the Latin American and the Caribbean countries and 10 members of the Western European countries and representatives from other countries. The Council is the UN’s most authoritative institution on human rights. The Council has the authority to conduct research on issues of human rights in different countries, make observations and prepare reports on these issues.
A related process took place regarding the attack on the Gaza Freedom Flotilla and a United Nations Fact Finding Mission was established by the decision of the UN Human Rights Council dated June 2, 2010, numbered A/ HRC/RES/14/1. The Mission started to operate as a three-person independent expert team, on July 23, 2010 under the presidency of Karl T. Hudson-Phillips, an International Criminal Court prosecutor together with the other members Sir Desmond de Silva, former International Criminal Court Chief Prosecutor for Sierra Leone and Mary Shanthi Dairiam, a former member of the Committee on the Elimination of Discrimination Against Women. After an independent and impartial investigation the mission has reached the conclusion that the attack of the State of Israel and the authorities thereof on the Gaza Freedom Flotilla, which aimed to transport humanitarian aid to Gaza in international waters, was a severe violation of International Humanitarian Law and Human Rights Law. The report number A/HRC/15/21 has been completed as of September 22, 2010, by the United Nations to be presented to the UN Human Rights Council in Geneva. The report not only examined the violations committed during the attack but also violations of international humanitarian law and human rights law after the attack. The Mission interviewed victims in Geneva, London, Istanbul and Amman to investigate the Israeli attack and collect evidence. In addition, the Mission has examinedtheMaviMarmara, GazzeIandDefne-Y vessels at the Port of Iskenderun in Turkey.
At the conclusion of the report, the Mission stated:
“The conduct of the Israeli military and other personnel towards the flotilla passengers was not only disproportionate to the occasion but demonstrated levels of totally unnecessary and incredible violence. It betrayed an unacceptable level of brutality. Such conduct cannot be justified or condoned on security or any other grounds.”
More importantly, the Mission, in the report has concluded that “there is clear evidence to support prosecutions of the following crimes within the terms of article 147 of the Fourth Geneva Convention:
-
Willful killing
-
Torture or inhuman treatment
-
Willfully causing great suffering or serious injury to body or health”
In our opinion, the Mission, by listing the abovementioned crimes, has actually urged the ICC to try those responsible for the attack. In addition, Sir Desmond De Silva, former International Criminal Court Chief Prosecutor for Sierra Leone and a member of the United Nations Fact Finding Mission later expressed that the attack should be tried by the ICC when he announced the case.
The Mission is also of the opinion that Israel has violated rules of international human rights law. These are:
-
The right to life (International Covenant on Civil and Political Rights, Article 6)
-
Torture and other cruel, inhuman or degrading treatment or punishment (International Covenant on Civil and Political Rights, Article 7, of the Convention against Torture)
-
The right to liberty and security of person, the prohibition of arbitrary arrest and detention (International Covenant on Civil and Political Rights, Article 9)
-
Humane treatment to detained persons and right of respect for human dignity possessed as an innate quality (International Covenant on Civil and Political Rights, Article 10)
-
Freedom of Expression (International Covenant on Civil and Political Rights, Article 19)
As a result, the United Nations Fact Finding Mission has submitted the abovementioned report at the UN Human Rights Council on September 27, 2010, and this report has been formally adopted. Several EU countries have abstained from voting for the report and only Israel, and the USA have used a negative vote. As a result the report is accepted by 30 countries out of 47. The above mentioned report is accepted to follow up and take necessary actions with 36 yes, 1 no and 8 abstained votes on the session dated on 17.06.2011. Based on this result, we urge the UN Secretary General and Council member states to carry out their responsibilities and implement the conclusions of the report
Statement on Palmer Panel
The Palmer panel was found and supported as a trap, in order to prevent the case review committee of the United Nations Human Rights Council (UNHRC) which was about to conclude against Israel and in favor of Turkey and the victims of the Gaza Freedom Flotilla. All supporters of the Mavi Marmara with a civil political view declared the “Palmer Panel as a trap and a game of Israel“. Additionally 150 international lawyers around the world signed letters which reached then UN Secretary-General Ban Ki Moon declaring that „the Palmer Panel will not be recognized as it is seen as Israel’s efforts to secure its safety in jurisdiction“.
The only valid and binding report accepted by the UN is the report of the Human Rights Council. While this report, which is in favor of Turkey and the victims, can be used as an instrument of enforcement to impose sanctions against Israel at the UN, this measure did not happen yet.
The Palmer Panel, which is manipulatively created to make the UNHRC’s report ineffective and evade any legal responsibility, harmed not only the legal battle carried out for the Mavi Marmara but also the reputation of the Turkish government.
Despite being bias, planned and launched with a political formation, the so-called report of the Palmer Panel is used by Israel against Turkey in the international community "since Turkey is a party to this panel as a state“.
On August 2, 2010, the Secretary-General of the United Nations announced the launch of a “panel of inquiry into the Gaza flotilla incident on 31 May“. Without specifying the direction of the panel’s investigation, the Secretary-General said that he hoped it would exercise its authority based on the Presidential Declaration.
The Investigation Panel has been given the "authority to receive and review national investigation reports" with the idea of ​​"recommending solutions to prevent similar incidents in the future“.
As everyone knows, the mission and ultimate goal of the panel appointed by the Secretary-General is to “improve the relations between Turkey and Israel, and also to positively influence the general situation in the Middle East“. Therefore it is completely different and political compared to the legally based UNHRC report.
While the panel started its first works on 10. August 2010, the panel members convened again in New York between 2-3 September representing their first progress report Secretary General on 15.September. Turkey presented its report on 1.September 2010 to the Committee of Inquiry.
The panel, which was founded with a pro-Israel majority, consisted of four members: the former New Zealand prime minister, Geoffrey PALMER, as chair of the panel, former President of Colombia, Alvaro URIBE, as vice-chair, from Israel Joseph CIECHANOVE and from Turkey retired ambassador ÖZDEM SANBERK.
In order for the Commission to conclude, therefore to publish its report, all four (4) parties who are member of the commission must vote the report as consensus, that is, unanimously. If unanimity cannot be achieved, the report would not become official and therefore it would be legally invalid. In this sense, the Palmer Report prepared by the commission has no legal validity as it was not accepted by Turkey, therefore it is in absence clause.
In a statement on 2.September 2011 on the conclusion of the Palmer Panel the then president Abdullah Gul said,“The report is null and void for us“. Detailed information about his statement can be found in the link below.
On 13.December 2014 the Turkish Ministry of Foreign Affairs published a statement in response to the criticism on their responsibilities during the legal process. In this statement the Ministry said: “The legal process following the attack by Israel against the ship Mavi Marmara has been carried out in full transparency. In this regard, we have submitted our national report containing all relevant information, documents and evidence that we possess to the UN Investigation Panel. This report is accessible. As a matter of fact, the crimes perpetrated by the Israeli forces are clearly stated in the final report published by the co-chairs of the Panel on the basis of our report“. The statement can be found in the link below.
Unfortunately the Palmer Report was published on the UN website and is used by Israel in international channels to avoid legal responsibility.