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.