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Activists may ask International Criminal Court to investigate raid

The Mavi Marmara sets sail from Turkey. Photo: AP Photo/Free Gaza Movement

Update | June 8 The Malaysian government has also called for Israel to face the International Criminal Court, and its prime minister has urged other states to submit proposals to the United Nations calling on the ICC to investigate, according to The New Straits Times, a Malaysian newspaper. The Malaysia Star reported that the government had set up a team of lawyers to petition the ICC to review the matter.

Sufi Yusoff of the Perdana Global Peace Organization, a Malaysian group which helped organize the first flotilla as well as a second ship that sailed for Gaza a week later, told Need to Know on Tuesday that his group would likely support the petition for an ICC investigation. “I would envisage that the PGPO will push for Israel to be brought to the ICC,” Yusoff said.

Original Post | June 7 A lawyer representing the Free Gaza movement said on Monday that he and the organizers of a Gaza-bound aid flotilla raided by the Israeli Navy last week may seek an investigation by the International Criminal Court, and argued that the ICC had jurisdiction to prosecute Israeli officials for the deaths of nine activists on board.

John Quigley, a professor of international law at Ohio State University, said in an interview on Monday the he had asked the government of Comoros, a small island nation off the eastern coast of Africa, to file a formal diplomatic protest against Israel over the deadly raid. The Mavi Marmara, a Turkish-owned ship aboard which the activists were killed, was actually sailing under the flag of Comoros. Unlike Turkey, Comoros is a party to the statute governing the International Criminal Court.

“The fact that it’s flagged in Comoros opens the possibility of an investigation and prosecution in the ICC, because Comoros is a party to the statute,” Quigley said. “Individuals, victims could file something with the [ICC] prosecutor and say ‘please investigate.’ The prosecutor would look to see if he has jurisdiction, and he would see that it occurred on a Comoros-flagged vessel.”

However, Comoros has no diplomatic relationship with Israel, and may be unlikely to file such a complaint. And a diplomatic protest would be distinct from an ICC investigation. A protest could possibly help move the ICC investigation forward, but would have no formal consequences itself. Israel, which has said the naval commandos who raided the ships acted out of self-defense, would most likely dismiss any complaints filed with the United Nations.

Quigley argued that if families of the victims and passengers aboard the Mavi Marmara did decide to take their case to the ICC, the court would have jurisdiction to investigate and possibly prosecute Israeli officials involved in the incident for war crimes.

“It would have to be a prosecution of some individual that the prosecutor could identify as being culpable,” Quigley said. “If there was someone who gave an order to fire, or who set in place a plan in advance to use physical force, that would be the kind of person.”

A spokesperson for the Comoros mission to the U.N. could not immediately comment on Quigley’s request, and said the Comoros ambassador to the U.N. would study the matter. The Israeli embassy in the United States did not immediately respond to a request for comment.

Audrey Bomse, a legal adviser to the Free Gaza movement, said her group and the Turkish organization behind the flotilla, known as the IHH, were currently focused on reacquiring the ship and its property from the Israeli government. Bomse said she planned to meet on Tuesday with lawyers from the IHH in Istanbul, and would consider whether the government of Turkey could take its case to the International Court of Justice, which mediates legal disputes between nations and is distinct from the ICC.

“Whether or not the Mavi Marmara was flagged in Turkey, it’s Turkish property, it’s Turkish-owned. If it belongs to a Turkish citizen, no matter where it’s flagged, the state can negotiate for the return of its property,” Bomse said in a telephone interview from Cyprus. “The only question is, can Turkey go into, say, the International Court of Justice on a boat that is not its flag?”