Tuesday, 1 June 2010

Gaza Flotilla: Can Israel be Brought to the International Criminal Court?

The attack on the humanitarian aid flotilla which took place in international waters has further enraged the world at Israel's behaviour. The Security Council has already addressed the issue, calling for an inquiry. Such an inquiry may consider possible outcomes, as previous inquiries have done. One question that will be asked is whether those who ordered or participated in the attack can be brought before the International Criminal Court.
Several ships were attacked. I am informed that the one central to the fighting bore a Turkish flag. It is therefore possible for Turkey to exercise jurisdiction with respect to crimes committed on or against the ship. An early ruling of the Permanent Court of International Justice, well known to students of public international law, makes this quite clear.

If Turkey can exercise jurisdiction over the ship, it can also assign jurisdiction to an international court. Article 12(2) of the Rome Statute is explicit in this respect. Accordingly, the Court ‘may exercise its jurisdiction’ over ‘The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft’.  But article 12(2) only applies to States parties. Alas, Turkey is not a State party to the Rome Statute.
Nevertheless, even without joining the Court, Turkey may give jurisdiction to the Court pursuant to article 12(3), with respect to the situation in question. This is the provision that was invoked by the Palestinian Authority last year. The Palestinian declaration remains under consideration by the Prosecutor. Unlike the Palestinian Authority, however, there is no debate as to whether Turkey is ‘a State’ within the meaning of article 12(3).
Briefly, then, Turkey should send a letter to the International Criminal Court giving jurisdiction over its ships in the Mediterranean with respect to the events of the past few days.


Christopher Gevers said...

Very interesting. Presuming Turkey avails itself of 12(3), and the Prosecutor decides the situation meets the requisite threshold (two very big presumptions), what crimes might the IDF be charged with? Presumably not CAH (widespread and systematic requirement being absent), but war crimes? If so, which ones? How would the conflict be classified?

Unknown said...

I read this post with interest. Would you be able to clarify which crimes (that are listed in the Rome Statute) have allegedly been committed in this case?

Hoffmann Tamás said...

I cannot really see how the ICC could have material jurisdiction over the situation.

The boarding and the ensuing clashes - no matter how tragic it is - could hardly be qualified as an armed conflict, and I am at a loss how it could be regarded as a crime against humanity or an act of genocide.

Zuzeeko Abeng said...

What an interesting twist.

From photos and videos - I have not seen the flag of Turkey, on the Mavi Marmara. However, assuming Turkey wants to drag Israel to the ICC for "war crimes", committed on board the ship; the question is - does Turkey reaaly want to shoulder responsibility for an attempt to break the Gaza blockade, without due process?

I am afraid the Prosecutor will not consider going down such a road, partly because the move would open a floodgate of "war crimes" cases.