International Criminal Court opens preliminary investigation into attack on Mavi Marmara

ActivismIsrael/Palestine
on 96 Comments
Mavi Marmara 1792948c
Thousands of Turkish protestors greet the Mavi Marmara ship as she returns to Istanbul December 2010 (Photo: EPA)
 

Yesterday May 14th Fatou Bensouda, Chief Prosecutor of the International Criminal Court (ICC), released a statement announcing her office would be opening a preliminary investigation into the massacre on board the Mavi Marmara in which the lives of 9 human rights activists were brutally cut short by the Israeli military  on May 31, 2010, in international waters off the coast of Gaza.

The ICC, otherwise known as “The Hague” is the permanent war crimes court in The Hague, Netherlands.

ICC media release, Office of Chief Prosecutor Bensouda:

Today my Office met with a delegation from the Istanbul-based Elmadag Law Firm, acting on behalf of the Government of the Union of the Comoros, a State Party to the International Criminal Court since 18 August 2006.

The delegation transmitted a referral “of the Union of the Comoros with respect to the 31 May 2010 Israeli raid on the Humanitarian Aid Flotilla bound for Gaza Strip, requesting the Prosecutor of the International Criminal Court pursuant to Articles 12, 13 and 14 of the Rome Statute to initiate an investigation into the crimes committed within the Court’s jurisdiction, arising from this raid’’.  In accordance with the requirements of the Rome Statute my office will be conducting a preliminary examination in order to establish whether the criteria for opening an investigation are met. After careful analysis of all available information, I shall make a determination that will be made public in due course.

The Mavi Marmara was registered in the sovereign state of the Comoros at the time of the attack. The Union of Comoros, an archipalego island nation off the coast of Africa, is a party to the Rome Statute.

The referral, hand delivered to Prosecutor Bensouda, reads “we kindly request urgent investigation for the purpose of determining whether one or more specific persons should be charged with the commission of alleged crimes.”

The materials respectfully submittted clearly demonstrate that the ICC possess both subject matter and territorial jurisdiction under Article 12 (2) (a) of the Rome statue and further support the position that reasonable basis exist to proceed with an investigation into the said incident.

220px Deputy Prosecutor
ICC Chief Prosecutor Fatou Bensouda

Prosecutor Bensouda is legally bound to open this initial investigation. Comoros is one of the four Arab League ICC state parties. That automatically confers jurisdiction on the Court for crimes committed on vessels flagged in Comoros.

Fatou Bensouda has been ICC Chief Prosecutor since June 2012. Earlier in her career she was Senior Legal Advisor and Head of the Legal Advisory Unit at the International Criminal Tribunal for Rwanda. Interestingly, she is an expert in international maritime law and the law of the sea. She acquired a Master of Laws from the International Maritime Law Institute in Malta.

Mondoweiss commenter Hostage:

This preliminary investigation will act as a deterrent against similar acts in the future, whether the Prosecutor does anything on the basis of this referral. The attacks on Greek and Cambodian vessels and the attacks on Gaza fishing boats throughout this long-term siege/blockade amount to a situation, not just an isolated crime.

The pending amendments to the Rome Statute on the crime of aggression categorize blockades as illegal acts, and Israel has systematically and forcibly transferred humanitarian aid flotilla passengers across international boundaries to its own territory. So there is ample justification for an investigation and the possibility of indictments.

(Hat tip Mondoweiss commenter Hostage)

About Annie Robbins

Annie Robbins is Editor at Large for Mondoweiss, a mother, a human rights activist and a ceramic artist. She lives in the SF bay area. Follow her on Twitter @anniefofani

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96 Responses

  1. HarryLaw
    May 15, 2013, 11:53 am

    Bravo little Comoros at last an Arab League state with a backbone, for your information, here is an event which took place at the Lawyers for Palestinian Human Rights very recently concerning the ICC….

    link to google.com

    The event commenced with Professor Schabas discussing the International Criminal Court (ICC). The hopes for the ICC were that it would be independent of the United Nations Security Council but it remains strongly influenced by political pressures particularly from the United States. Therefore, the problem with getting Palestine before the ICC becomes a political one.

    There are three ways in which the ICC can have jurisdiction. Firstly, the ICC has jurisdiction over States which have joined the court, neither Palestine nor Israel have. Secondly, the ICC has jurisdiction if the Security Council asks the ICC to open an investigation, which has happened with Libya and Sudan, and it is at the Prosecutor’s discretion whether to pursue it. Thirdly, a State that is not a member can say that the ICC has jurisdiction, which is what Palestine did in January 2009. The Prosecutor seemed to be considering it but Professor Schabas reported that Wikileaks revealed that the Prosecutor assured the United States that they would not be bothered about Palestine. The Prosecutor then left office saying ‘it was not for me to decide’ which is legally wrong, and left it for the UN General Assembly.

    The fact that the ICC has jurisdiction is not enough for an investigation, there must also be a trigger. The triggers can be at the request of one of the Member States, at the request of the Security Council or by the Prosecutor, but this last trigger must be authorised by a panel of three judges.

    Assuming that there is jurisdiction, based on the Palestine 2009 declaration and the General Assembly resolution, the next step would be to find a trigger for investigation. One of the Member States could have done this and there were informal talks about encouraging this perhaps from a Latin American country, but politically no State wants to trigger jurisdiction over another State. Palestine could join the court to trigger the investigation, which would be a simple process but would still leave them in the hands of the Prosecutor who always has a veto. Professor Schabas expressed that whilst it is ultimately about the politics of the Prosecutor, it is still worth trying.

    There are concerns that the ICC itself is not healthy, after a decade there have only been two trials with one conviction and an acquittal. Six out of 14 cases pursued have flopped, another is flopping, and one is faltering. Yet it is possible that Palestine would be good for the Court. All States are in principle equal before the court which would mean the scrutiny would be on both Palestine and Israel. Yet the question remains as to whether the court would dare to deal with a case like Palestine. Diplomats have expressed concern that it would destroy the Court to tackle such a politically sensitive issue, politicising the court and risking alienating the United States as an ally of the Court.

    Professor Schabas closed with asserting that under the Rome Statute it is a war crime to move civilians into settlements and therefore Israel would have a case to answer to the ICC. There is a hope that the Prosecutor will take it up, but ultimately politics will decide.

    • HarryLaw
      May 15, 2013, 12:57 pm

      Just to add to the above , Professor Schabas responded to a question on the Prosecutor’s veto by saying “that if the Prosecutor refuses to act, it would still be subject to judicial revue before three judges, which would be interesting in itself”.

      • Annie Robbins
        May 15, 2013, 5:18 pm

        well harry, it appears professor schabas was not correct when he stated:

        The fact that the ICC has jurisdiction is not enough for an investigation, there must also be a trigger. The triggers can be at the request of one of the Member States, at the request of the Security Council or by the Prosecutor, but this last trigger must be authorised by a panel of three judges.

        the link to the “referral, hand delivered to Prosecutor Bensouda” states “It is our hope the the respected office you represent give a favorable response to our request by triggering an investigation”. and it did. no judges.

        furthermore, when he says the ICC has jurisdiction over States which have joined the court, neither Palestine nor Israel have. .

        in an email exchange w/hostage earlier he wrote:

        “The former Prosecutor claimed that he was not empowered to decide whether or not Palestine was State capable of accepting the court’s jurisdiction in 2009. That only means the Prosecutor couldn’t decide that legal question one way or the other.”

        that was before the general assembly upgraded Palestine’s status at the UN. furthermore, he sent this link: link to opiniojuris.org

        Palestine has accepted the Court’s jurisdiction via the Article 12(3) declaration and produced evidence of mutual treaty relations with other ICC member states pre-dating the entry into force of the Rome Statute. The General Assembly resolution on its upgraded status cited its 1988 UDI and subsequent membership in other international organizations that are only open to participation by States.

        If there is a dispute over a material fact, like statehood, that would be up to the Judges to decide at trial, not the Prosecutor.

        there’s more at that last link above. i am reluctant to take this on as my understanding of the legalities are very limited. more here: link to timesofisrael.com

      • HarryLaw
        May 15, 2013, 6:39 pm

        Annie @ “the link to the “referral, hand delivered to Prosecutor Bensouda” states “It is our hope the the respected office you represent give a favorable response to our request by triggering an investigation”. and it did. no judges”. My understanding of this is the trigger came from the Comoros state as an ICC member [the mavi marmara being registered in Comoros] the Prosecutor therefore could initiate an investigation on this referral, but not on her own motion [proto moto] in such a case she must first submit to the pre trial chamber a request for authorization for an investigation. The pre trial chamber shall authorize the commencement of the investigation. The Professor’s answer to any refusal by the prosecutor to take action is interesting given that such refusal can be reviewed by three judges, presumably the pre trial chamber, is most heartening.

      • Annie Robbins
        May 15, 2013, 7:07 pm

        harry, i’m in over my head. thanks for engaging, i think i’ll watch and learn from the sidelines as this unfolds.

      • Hostage
        May 15, 2013, 8:16 pm

        well harry, it appears professor schabas was not correct when he stated:

        The fact that the ICC has jurisdiction is not enough for an investigation, there must also be a trigger.

        Prof. Schabas has an outstanding article on the subject today: “Out of Africa. Israel is Referred to the International Criminal Court” link to humanrightsdoctorate.blogspot.com

        The European Journal of International Law also has an Editorial “Court between A Rock and a Hard Place: Comoros Refers Israel’s Raid on Gaza Flotilla to the ICC” link to ejiltalk.org

        The Comoros state referral is actually an example of one of the 3 triggers that Schabas mentioned. There has to be one or more of those to start the ball rolling. That’s true even in the case of an Article 12(3) declaration from a non-member state. Palestine was counting on the Prosecutor to act on a proprio motu basis or on a referral from a state party, like one of the four Arab League member States of the ICC, i.e. Jordan, Comoros, Algeria, or Djibouti. The Arab League states referred their own fact finding report to the Prosecutor on Operation Cast Lead.

        Technically the new Comoros referral should be considered a State party referral of situations on the territory of Greece, Cambodia, and Palestine too. It cited the IDF attack on vessels flagged by those two other ICC state parties during the flotilla raid – together with Palestine’s acceptance of the Court’s jurisdiction in connection with the blockade and siege of Gaza – as part of the “wider context” of “the situation” in question.

        i am reluctant to take this on as my understanding of the legalities are very limited.

        Legions of angels and public propaganda ministers are still dancing on the heads of pins and obscuring “the legalities” involved. I’ve been complaining ever since the UNESCO vote over the failure of the Palestinian Solidarity movement to focus more attention on this and bring more pressure to bear on the Prosecutor of the ICC.

        Even if activists had obtained a Security Council referral of the Goldstone report, it would have still been DOA or serious lacking of inertia once it landed on the Prosecutor’s desk in the Hague. So long as the Office of the Prosecutor (the OPT) is allowed the freedom to hem and haw, rather than take action, the officials there will still prefer to curry favor with the USA instead. Despite the fact that Washington still has the Hague invasion act on the books, is prohibited from using any appropriated funds whatsoever to assist the Court or to the extradite suspects, and does not have any say in the Court’s operations, the Officers of the Court still harbor the illusion that the US government will decide to make nice and become a member (real soon now) if they just kowtow enough.

        Bottom line: unless actors like the BDS movement, Russel Tribunal, and UN General Assembly turn-up the heat on the Presidents of the Court and the Assembly of State Parties, the Israelis probably won’t be “facing the music” just yet. Fortunately things are starting to snowball and the jurisdiction under the Rome Statute won’t expire.

      • Citizen
        May 16, 2013, 9:09 am

        @ Annie
        Thanks!

  2. DICKERSON3870
    May 15, 2013, 1:20 pm

    RE: “International Criminal Court opens preliminary investigation into attack on Mavi Marmara”

    MY COMMENT: Fiat justitia! ( “Let Justice Be Done!” )
    Justice for Furkan Dogan and the others!

    P.S.
    REV. M.L.K. JR (1963): “Injustice anywhere is a threat to justice everywhere”
    CHIEF JUSTICE EARL WARREN (1958): “[J]ustice too long delayed is justice denied”

  3. Kathleen
    May 15, 2013, 2:28 pm

    This is great news. Thanks Hostage and Annie

    • Citizen
      May 16, 2013, 9:15 am

      @ Kathleen
      Yes. Hostage and Annie are like bulldogs, fierce in their continued defense of informed justice. If they had decided to become CEOs of an American corporation they’d be very wealthy. This gives hope to those of us who have also declined anything even remotely similar because we’re truth seekers, and justice seekers. Money is not everything, but as a US senior citizen, I can guarantee $ helps a lot in keeping one independent. So it’s a lot to give up whatever one makes available through dint of personal winning of any usual credentials towards making lots of money.

  4. American
    May 15, 2013, 2:56 pm

    Interesting!

    Excellent job annie and hostage.
    Follow this and keep us informed please.

  5. frankier
    May 15, 2013, 6:03 pm

    I am not familiar with the politics in Comoros, but I am used to look at the motivations behind the actions of governments around the world. What does Comoros gain by going to the ICC? Why now? Why after the news of a potential payment to the family of the victims who choose to settle with Israel?

    Comoros is not the wealthiest economy on earth, quite the opposite… are they trying to create some leverage with Israel and try to bring them to the negotiation table for a monetary settlement? A legal question I would hope someone can answer is if the referral to the ICC can be withdrawn once filed.

    I may be totally off-target and Comoros is acting with the best intentions, but I think we should question or at least have a conversation about the motivations underlying Comoros’ action.

    • Annie Robbins
      May 15, 2013, 7:04 pm

      not the wealthiest economy on earth, quite the opposite…..I think we should question or at least have a conversation about the motivations underlying Comoros’ action.

      it was flying under their flag and it is the right thing to do. what might they have to loose?

      • frankier
        May 15, 2013, 7:22 pm

        Annie, I hear you… but what do they gain by it? I am not saying that their action is not right… I am just playing the devil’s advocate…

      • Annie Robbins
        May 16, 2013, 12:19 am

        again, it is the right thing to do. unless it was for name recognition. i don’t recall hearing about comoros before but if i did i don’t remember…

      • Annie Robbins
        May 16, 2013, 1:20 am

        remember this: link to mondoweiss.net

        Since Palestine’s UN upgrade two weeks ago, events and rhetoric appear to be on steroids, moving at a swift pace . Palestinian President Mahmoud Abbas, speaking at a press conference in Ankara with Turkish President Abdullah Gü Wednesday, said he would take legal action against Israel should it make efforts to colonize E1, a portion of land east of  Jerusalem. “His country is coordinating with Turkey to develop a legal strategy,” according to Turkish daily Today’s Zaman.

        so maybe turkey offered them something they wanted. let’s not pretend it’s not turkey making this action happen. and …who else?

        plus, netanyahu is between a rock and a hard place. he can’t get his budget passed if he doesn’t bend to the rtwg contingency (some of whom are in his cabinet).

        Israeli Housing Minister, Uri Ariel, of the Jewish Home Party, stated that his party will oppose any government budget that does not include budgets for the construction and expansion of Jewish settlements in areas Israel vowed to build in after the Palestinians headed to the United Nations last year.

        so this is just the drip drip drip of diplomatic hardball.

      • Hostage
        May 16, 2013, 1:35 am

        i don’t recall hearing about comoros before but if i did i don’t remember…

        There were Turkish flagged ships in the flotilla, and crimes were committed against all of the passengers. But I’ve been pointing out for a long time now that the murders occurred on a Comoros-flagged vessel and that it is an ICC member state, e.g. here’s a post from January 2011. link to mondoweiss.net

        So Comoros, not Turkey, has the necessary legal jurisdiction under article 12(2) of the Rome Statute, the UN Convention on the Law of the Seas, & etc. to transfer its criminal jurisdiction to the ICC.

      • Annie Robbins
        May 16, 2013, 9:32 am

        hostage, i am afraid my dry sense of humor went unrecognized. i wasn’t actually serious when i said this “unless it was for name recognition.“.

        but come to think of it, perhaps the scheme was devised by their minister tourism.

      • Hostage
        May 17, 2013, 1:53 am

        hostage, i am afraid my dry sense of humor went unrecognized.

        Oh, I took you to mean you hadn’t heard about the connection of Comoros to the flotilla case before, not that you needed a geography refresher;-)

        In any event, Comoros has referred the crimes committed against the passengers on board the vessels flagged by the other ICC member states, namely: Cambodia (Rachel Corrie), Comoros (Mavi Marmara), Greece (Eleftheri Mesogios).

        That means the Court still doesn’t jurisdiction to investigate the crimes committed against the passengers and crews of the vessels flagged by other states, namely Kiribati (Defne Y), Togo (Sfendoni), Turkey (Gazze 1) and the United States of America (Challenger 1).

      • RoHa
        May 16, 2013, 3:00 am

        “what might they have to loose?”

        Mere anarchy upon the world, perhaps? Blood-dimmed tide?

        Or do you mean “lose”?

        (I keep seeing “loose” for “lose” on American websites. It seems that, not only have capital letters been lost, but also the spelling of four letter words.)

      • Citizen
        May 16, 2013, 9:20 am

        @ RoHa
        Yeah, you are not the only one who has noticed this. As a semi-relevant aside, I recently read a transcript of an email debate between Greenwald and Dershowitz and the Dersh’s contained many typo errors. So Harvard stars are not immune from crappy writing.

      • Annie Robbins
        May 16, 2013, 9:41 am

        roha, it’s because the o in lose sounds like the oo’s in moose, goose, snooze and caboose. the e at the end of so many 4 letter words is supposed to make the vowel hard, like nose and pose. alas, i’m afraid this problem isn’t going away.

      • eljay
        May 16, 2013, 9:58 am

        >> roha, it’s because the o in lose sounds like the oo’s in moose, goose, snooze and caboose.

        But…when you spell the word “lose” as “loose”, you end up with the word “loose”. Seems to me it would make more sense to spell it “looze”.

        If you’re going to spell things incorrectly, the least you can do is get it right. ;-)

        :-P

      • Bumblebye
        May 16, 2013, 11:28 am

        Poor persnickety RoHa.
        Let it amoose you instead!

      • RoHa
        May 16, 2013, 8:58 pm

        “So Harvard stars are not immune from crappy writing.”

        And yet I first encountered lines from The Second Coming in a science fiction story I read when I was a boy. And that story was written by a [gasp!] American writer.

        Yes, Virginia; back when RoHa was young (a time so long ago as to seem almost fabulous) even some Americans had a smattering of education.

        But now, in Britain and Australia as well, education has been abandoned. I only hear its melancholy, long, withdrawing roar, retreating, to the breath of the night-wind, down the vast edges drear and naked shingles of the world. And since my brother died recently, now I alone am left to try to hold back the black pall of barbarism and ignorance that falls upon the world.

    • Dutch
      May 15, 2013, 10:50 pm

      @ Frankier

      This is not about ‘intentions’. The ship sailed under Comoros registration, meaning that a logical path to the ICC on behalf of the victims is through them. Secondly, as one of four nations the Comoros can be officially addressed to bring the case to the ICC. And thirdly, as you noted yourself, they have a tight economy on the Comoros. Piracy and terrorism are of course a major threat to their business. They don’t want this to happen again – so much seems clear. (I guess we should call that an ‘intention’.)

      All this seems logical to me, well-motivated, and in their best interest. I think much more important is the point Hostage brought up above: who is going to join the Comoros to put pressure on the ICC-case? It is now a matter of volume (call it ‘facts on the ground’), and there is nothing complex about getting the ball rolling, as the Comoros have just shown.

      This is a meaningful event that should not be taken for granted too easily. Word should go out toward the BDS Movement, the Russell ToP, and others, to support the Comoros’ step by calling on the ICC themselves. It should be on the agenda for their next meeting, and taken care off within a month. That’s the timetable we’re talking about here.

      If indeed valuable time can be won (re. Hostage’s last paragraph), if indeed this is now the shortest path in fighting Israel’s injustice, we should take this serious and bring it to the attention of our (local, national or int’l) BDS Movement and the RToP. The snowball is waiting at platform one.

    • Hostage
      May 16, 2013, 12:53 am

      What does Comoros gain by going to the ICC? Why now?

      Comoros was already a signed-up dues paying member of the ICC before the IDF attacked the Mavi Marmara.

      The ICC only has complementary jurisdiction. It’s intended to be a Court of last resort. That means it generally can’t conduct investigations or prosecutions while the UN or national criminal justice systems are still willing and able to address a situation. The bottom line is, that the behind the barn deal for Turkey to drop its prosecutions in exchange for tort damages automatically triggers the ICC’s criminal jurisdiction.

      You do realize that we are talking about war crimes that aren’t subject to any statutory limitations?

      • ritzl
        May 16, 2013, 11:48 am

        @Hostage In your experience, is it possible that this was strategy, as opposed to afterthought or unexpected side-effect?

        The bottom line is, that the behind the barn deal for Turkey to drop its prosecutions in exchange for tort damages automatically triggers the ICC’s criminal jurisdiction.

        Sounds like a lose-lose (looze-looze?) for Israel. Pretty clever if strategy.

      • RoHa
        May 16, 2013, 10:22 pm

        Luze – luze?

      • Hostage
        May 17, 2013, 3:13 am

        @Hostage In your experience, is it possible that this was strategy, as opposed to afterthought or unexpected side-effect?

        It’s a predictable consequence of one of the key provisions of the Rome Statute. Lawyers have to take those into account. So its probably part of the Elmadag Law Firm’s strategy.

        * There is a difference between individual criminal responsibility and state responsibility for wrongful acts. Payment of compensation by a state, e.g. German Holocaust compensation, doesn’t negate individual criminal responsibility. Look no further than the payments made to the State of Israel and the fate of Adolf Eichmann.

        * Any state, like Turkey, can exercise universal jurisdiction over war crimes, crimes against humanity, & etc.

        * Article 12(1) of the Rome Statute says that “A State which becomes a Party to this Statute [e.g. Comoros] thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5.”

        * Article 17 of the Rome Statute says that a case is inadmissible if it is being investigated or prosecuted by a State which has jurisdiction over it [e.g. Turkey], unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.

        * At one and the same time, Article 17 stipulates the conditions that trigger the Court’s jurisdiction, i.e. any decision or proceedings taken at a national level for the purpose of shielding the persons concerned from criminal responsibility for crimes within the jurisdiction of the Court; unreasonable delays; or proceedings that are not conducted independently or impartially.

        * So the mere fact that Turkey was conducting a criminal trial in connection with the flotilla raid prevented the ICC from stepping-in and conducting its own investigation or prosecuting the parties concerned.

        * When Turkey and Israel announced a possible deal to drop the criminal proceedings as part of a diplomatic settlement between the two States. That removed the Article 17 jurisdictional bar against any ICC actions.

        * The Prosecutor really doesn’t require a state referral in the case of a crime committed on the territory of a member State. The Comoros referral served the purpose of pointing out its territorial jurisdiction under Article 12(2) and its inability to prosecute the individuals responsible in accordance with Article 17. In this case there are difficulties acquiring custody of the suspects, due to the fact that Israel and Comoros do not maintain regular diplomatic relations.

      • Kathleen
        May 16, 2013, 12:39 pm

        “You do realize that we are talking about war crimes that aren’t subject to any statutory limitations?”

        Would that apply to the ‘war crimes” or “crimes against humanity” apply to the Bush administrations Iraq invasion and consequences?

      • Hostage
        May 17, 2013, 3:23 am

        Would that apply to the ‘war crimes” or “crimes against humanity” apply to the Bush administrations Iraq invasion and consequences?

        Yes. Any State today can exercise universal jurisdiction over the Iraq invasion. In Regina v. Jones (2006), the UK Law Lords accepted the proposition that the core elements of the crime of aggression have been understood, at least since 1945, with sufficient clarity to permit the lawful trial (and, on conviction, punishment) of those accused of this most serious crime. They said that: “It is unhistorical to suppose that the elements of the crime were clear in 1945 but have since become in any way obscure.”

        link to publications.parliament.uk

  6. justsayin
    May 15, 2013, 6:43 pm

    I would have thought by now an investigation would have been done on the illegal aparthied now 65 years old, before that, not to take away any importance. So why has there been none??

    • Hostage
      May 16, 2013, 1:19 am

      I would have thought by now an investigation would have been done on the illegal aparthied now 65 years old, before that, not to take away any importance. So why has there been none??

      “The buck stops” at the Office of the Prosecutor on that particular issue.

      Prof. Schabas has authored scores of textbooks on international law, including ones about the Rome Statute and the ICC (e.g. “An Introduction to the International Criminal Court”, Cambridge University, 4th Edition). Here is how he put it in the article I cited above:

      The flotilla events are probably the weakest basis for Palestine-related prosecutions at the International Criminal Court. The best focus for the Prosecutor – and something she can do on her own, without any referral, and by acknowledging the validity of the January 2009 declaration – is an investigation into the ongoing settlement policy of Israel. It is unlawful in international law and a crime under the Rome Statute. A decision by the Prosecutor to investigate the situation of the settlements might help the world to address a situation of festering and intolerable illegality. And while it might anger a few powerful states, it would do wonders for the Court’s reputation in Africa and elsewhere in the Global South.

  7. Daniel Rich
    May 15, 2013, 10:43 pm

    Q: “… there must also be a trigger. ”

    R: Yah. I still wonder whether the IDF stormtroopers single-handily strangled or garotted 8 Turkish and 1 American activist/s. The verdict’s still out on that one.

    Needless to say that ‘international waters‘ are labeled as such for a very good [legal] reason.

    But hey, what’s Israel got to fear after the Apartheid state got away with having caused ‘an accident’ after the Apartheid State attacked the USS Liberty for hours on end, in -you guessed that right- ‘international waters‘ ?

  8. Citizen
    May 16, 2013, 9:37 am

    So why doesn’t the ICC investigate Israeli settlement policy? US power influence?

    • mondonut
      May 16, 2013, 12:13 pm

      Citizen says: So why doesn’t the ICC investigate Israeli settlement policy? US power influence?
      =================================================
      link to icc-cpi.int

      “the jurisdiction of the Court for the purpose of identifying, prosecuting and judging the authors and accomplices of acts committed on the territory of Palestine …”

      Maybe it’s the part where Palestine does not actually have territory, and the ICC is in no position to define it for them.

      • Citizen
        May 16, 2013, 1:14 pm

        @ mondonut
        No legal words can deny that the natives, the Palestinian people were not living on their land for centuries before Zionists came from Europe and USA to take away their homes.

      • mondonut
        May 17, 2013, 10:39 am

        Citizen says: No legal words can deny that the natives…
        =============================================
        Nobody is trying to deny who lived there, but that has nothing to do with the recognized, defined borders of a sovereign state.

      • Hostage
        May 17, 2013, 11:56 am

        Nobody is trying to deny who lived there, but that has nothing to do with the recognized, defined borders of a sovereign state.

        Sure it does. There are about 189 countries that have told Israel in no uncertain terms to stop messing around with the demographic balance of the Occupied Palestinian territories. Nobody, but nobody, thinks that they are Israeli territory or calls them by that name.

        You get a failing mark and get held back until you learn that the
        territorial integrity norm of international law protects the jus cogens right of national self-determination from prohibited coercive revision.

        For example, Article 1 of the Montevideo Convention doesn’t say one word about sovereignty. It’s just a list of recommended qualities:

        The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.

        The boundaries of States are always drawn around “the people who live there” and function to protect and conserve their existence. Article 11 of Montevideo stipulates that:

        The contracting states definitely establish as the rule of their conduct the precise obligation not to recognize territorial acquisitions or special advantages which have been obtained by force whether this consists in the employment of arms, in threatening diplomatic representations, or in any other effective coercive measure. The territory of a state is inviolable and may not be the object of military occupation nor of other measures of force imposed by another state directly or indirectly or for any motive whatever even temporarily.

        link to jus.uio.no

        None of that is written in secret code or disappearing ink.

      • pjdude
        May 17, 2013, 7:42 pm

        Actually the moment the mandate ended a Palestinian state came into existence and even if we take your stance they weren’t a state sovereignty of the territory was universally recognized as belonging to them so they did have territory

      • mondonut
        May 17, 2013, 11:18 pm

        Hostage says: Nobody, but nobody, thinks that they are Israeli territory or calls them by that name.
        ===================================================
        So basically your argument is that the borders of the state of Palestine are defined by drawing a line around some people? And you expect the ICC to acknowledge the drawing a line around people theory and prosecute on its basis?

      • Hostage
        May 18, 2013, 7:41 pm

        So basically your argument is that the borders of the state of Palestine are defined by drawing a line around some people?

        Yes, I expect the ICC will respect the boundaries established by the Chapter VII UN Security Council-resolutions. All of its members, except the Cook Islands are UN member states which are bound to abide by any such Security Council decision. For the most part, those boundaries were drawn between people who were part of the opposing armed forces in order to prevent further clashes.

        I can’t see any reason why you object to the idea. That’s certainly the technique employed by the the Jewish Agency when it created “facts on the ground” by erecting the watchtower and stockade settlements along so-called confrontation lines. It was an attempt to determine the frontiers of the Jewish state. You can read all about that at the Jewish Virtual Libray or the JAFI websites if you are really that clueless.

        * link to jewishvirtuallibrary.org
        * link to jewishagency.org

        The Agency also used the technique in its negotiations with the UNSCOP subcommittee on partition to include as much Arab territory as possible in the Jewish state, while excluding the Arab owners. The text of resolution 181(II) points out that about 50 villages had been cut-off from their agricultural lands by the proposed boundary. It tasked the Palestine Commission with gerrymandering the final demarcation to allieviate the situation. So yes, the UN consciously drew the boundaries around communities of people.

      • talknic
        May 18, 2013, 10:33 pm

        mondonut “basically your argument is that the borders of the state of Palestine are defined by drawing a line around some people?”

        How do you think a state is defined? Read this first though, its the LAW since being ratified 1934

        “ARTICLE 1 The state as a person of international law should possess the following qualifications: a ) a permanent population; b ) a defined territory….”

        ARTICLE 11
        The contracting states definitely establish as the rule of their conduct the precise obligation not to recognize territorial acquisitions or special advantages which have been obtained by force whether this consists in the employment of arms, in threatening diplomatic representations, or in any other effective coercive measure.

        You keep looking for the next stupid excuse when you’re faced with indisputable evidence…. why?

      • mondonut
        May 19, 2013, 1:13 pm

        talknic: How do you think a state is defined? Read this first though, its the LAW since being ratified 1934…
        ==========================================
        None of which determines the extents of Palestinian national territory. Unless you are trying to advance the theory that as the occupying power Israel is unable to negotiate with Palestine simply because they are the occupying power and enjoy a specific advantage due to that.

      • talknic
        May 17, 2013, 3:28 am

        mondonut “Maybe it’s the part where Palestine does not actually have territory”

        The Israeli Government official statement to the UNSC May 22nd 1948 ” .. the Government of the State of Israel operates in parts of Palestine outside the territory of the State of Israellink to wp.me

        ” and the ICC is in no position to define it for them”

        True, the court cannot define territory. However, Israel defined its sovereign extent effective 00:01 May 15th 1948 (ME time) and was recognized as such. The other states in the region had already defined boundaries before 1948. Palestinian territory was defined by default of the legal sovereign extent of its neighbours.

        In considering the alleged crimes of an Occupying Power, the court must base its judgement on the Internationally recognised legal extent of the Occupying Power’s sovereignty, which according to the Israeli Govt of 1948 was “.. within frontiers approved by the General Assembly of the United Nations in its Resolution of November 29, 1947″ link to trumanlibrary.org

        Israel has never legally annexed any territory and it is inadmissible to acquire territory by war…. go figure..

      • mondonut
        May 17, 2013, 10:42 am

        talknic says: True, the court cannot define territory. However, Israel defined its sovereign extent…
        =====================================================
        The borders of Israel is not the question, rather the borders of Palestine. Which are not defined by your “by default” method.

      • talknic
        May 17, 2013, 2:21 pm

        @mondonut Israeli Government statements and UNSC resolutions say you’re spouting twaddle.

      • Hostage
        May 18, 2013, 1:07 am

        The borders of Israel is not the question, rather the borders of Palestine. Which are not defined by your “by default” method.

        Perhaps, but the extent of a state’s jurisdiction can and does peacefully change or evolve over time. For the purposes of the war crimes laws in the Rome Statute, the Court only needs permission from any of the States that exercise or share “territorial jurisdiction” under one of the UN Armistice Agreements.

        Come and hear: when a State party to the Rome Statute signs a formal agreement to protect the Jerusalem Holy Places, that has legal consequences with respect to the extent of its own jurisdiction. Under the terms of Article 12, the Rome Statute applies to all of the territory which is subject to the jurisdiction of an ICC member State. See Jordan, Palestinians sign agreement to protect J’lem holy sites link to ynetnews.com

        FYI, Jordan was one of the first countries to accept the protections extended by the Rome Statute. The first President of the Court’s Legislative body, the Assembly of States Parties, was Ambassador Prince Zeid Ra’ad Zeid Al Hussein of Jordan.

        The Court has its own subject matter jurisdiction over crimes that were established by the Statute itself, regardless of whether or not they are considered to be crimes under local law.

        Palestine’s current borders were originally fixed by Jordan in the 1949 Armistice Agreements and the rules on belligerent occupation contained in the Hague and Geneva Conventions. FYI, the ICJ cited the terms of the 4th Geneva Convention on non-renunciation of rights and advised that the belligerent occupation originally began as an armed conflict between two High Contracting Parties, Israel and Jordan, and that nothing had altered that status since 1967.

        Israel’s peace treaty with the Kingdom of Jordan contained a safeguarding clause, which stipulated that it did not alter the legal status of any territory that came under the control of the Israeli military in 1967.

        The boundaries contained in those agreements remain unchallengeable today unless – and until – a final settlement is concluded by mutual consent of the parties concerned which “might” alter the existing international demarcation lines. In short, for all of its bold talk about the “disputed status” of the territory, Israel itself granted Jordan jurisdiction over the territory in writing from the very outset and hasn’t complied with the terms for peacefully altering the frontiers. There is a maxim in the Torah which says: Cursed be he who moves back his neighbor’s landmark. And all the people shall say, ‘Amen!’ — Deuteronomy 27:17.

        FYI, those agreements were adopted as provisional measures under the auspices of UN Security Council resolutions 62 and 73. Both of them were Chapter VII resolutions that are still in force, pending an end to the conflict. They explicitly invoked the organization’s powers under Articles 39 and 40 of the UN Charter. The agreements established “permanent international armistice lines of demarcation” which every UN member state is bound to respect. The agreements and resolutions stipulated that the armed forces and civilian populations of the respective parties may not legally pass beyond those frontiers.

        Talknic has correctly pointed out that the Security Council explicitly recognized that the Israeli attack on the Hebron area in 1966 was a premeditated act of aggression on a region that was subject to Jordanian territorial jurisdiction.

      • talknic
        May 18, 2013, 5:10 am

        @ Hostage There is a maxim in the Torah which says: Cursed be he who moves back his neighbor’s landmark. And all the people shall say, ‘Amen!’ — Deuteronomy 27:17.

        and

        This is how you are to treat all the cities that are at a distance from you and do not belong to the nations nearby.

        The West Bank was part of the Independent Sovereign State of Jordan (UN Member) in 1967

      • Hostage
        May 17, 2013, 4:31 am

        So why doesn’t the ICC investigate Israeli settlement policy? US power influence?

        Exactly. There’s almost nothing to investigate when the guilty parties have press conferences to announce the latest developments in their criminal enterprise.

        Maybe it’s the part where Palestine does not actually have territory, and the ICC is in no position to define it for them.

        The government of Israel has made it a matter of public record that neither the West Bank nor Gaza can be considered part of its sovereign territory or jurisdiction. See E/1990/6/Add.32, para 6-7

        The Israeli Supreme Court has subsequently ruled that the administered territories are under a regime of belligerent occupation.

        Israel lost the argument over the status of East Jerusalem when the International Court of Justice provided its own legal analysis of both the status of the Occupied Palestinian territory and the status of the illegal Israeli settlements in 2004.

        There is a division of labor between the two international courts. Article 25 of the Rome Statute limits the International Criminal Court’s jurisdiction to “natural persons”. So, it’s not likely to challenge the ICJ on questions pertaining to the legal status of any territory.

        FYI, under the terms of the Statute, the ICC already has complimentary subject matter jurisdiction over a number of criminal acts defined in the Geneva Conventions. Most of them are “prohibited at all times and in all places”. So attempts at the national level to protect an individual from prosecution by the ICC simply serve to trigger its action.

        Israel explicitly acknowledged that the PA exercised “territorial jurisdiction” in the text of the now-lapsed Oslo Accords. Article 12(3) of the Rome Statute allows any State which exercises territorial jurisdiction to accept the assistance of the ICC. Note: Israel only retained “personam jurisdiction” over its own citizens for a period of five years under the interim agreements. It’s attempts to retain exclusive jurisdiction violate customary international law regarding the right of states to exercise universal jurisdiction.

        So, the lapsed Accords themselves have never immunized acts committed on the territory of Palestine from prosecution by other States or by the ICC. In any event, the Rome Statute entered into effect in 2002 after the 5 year term of the Oslo Accords had expired.

        The settlements that existed before that date still entail on-going acts of apartheid that are not protected or “grandfathered” in any way. The CERD panel of experts have been advising Israel since at least 1998 that maintaining Jewish-only settlements in Palestine violates the ICERD Article 3 prohibition of apartheid and illegal segregation. That’s an on-going crime against humanity according to Article 7 of the Rome Statute.

      • mondonut
        May 17, 2013, 11:44 am

        Hostage says: The government of Israel has made it a matter of public record that neither the West Bank nor Gaza can be considered part of its sovereign territory or jurisdiction. See E/1990/6/Add.32, para 6-7
        =============================================
        Again, you cannot define what is Palestine by attempting to define what Israel is not. Of course, if Palestine wishes to define itself by the “territorial jurisdiction” your reference then I will assume Israel would be happy to recognize their borders as areas A&B.

        As for Oslo, they remain in effect for as long as both parties (Israel and the PLO) choose to consider them in effect. As of right now neither party considers them lapsed or dissolved, so they are not. And within those agreements (still in effect) they agreed that Israel had criminal jurisdiction within Area C, they very same jurisdiction they are now pretending to assign to the ICC.

        It is no mystery why they are not pursuing settlement policy at the ICC, they have nothing to pursue.

      • talknic
        May 17, 2013, 2:31 pm

        @mondonut “Again, you cannot define what is Palestine by attempting to define what Israel is not. “

        In conjunction with what the other states in the region are not, one certainly can define Palestine.

        Israel defined what it is not. Israel has no right to non-Israeli territory.

      • Cliff
        May 17, 2013, 5:54 pm

        @nut

        Israel has no moral justification nor right to be in the OT, stealing Palestinian land and resources.

        The bureaucracy (context; as in how you and people like you interpret law to favor your crimes) that you worship (when it favors you) is besides the point. Israel can colonize Palestinian land because it simply ‘can’ (power).

        What you and other pro-apartheid activists/colonists are saying is that any group of people that have been living on their land for thousands of years aren’t really people and aren’t really residents of said land. They are temporary until Jewish colonists come over and kick them out by force.

      • mondonut
        May 17, 2013, 10:54 pm

        talknic says: Israel defined what it is not. Israel has no right to non-Israeli territory.
        ===================================================
        Then conversely Palestine has no right to non-Palestinian territory. I hope they will be happy in Area A.

      • Hostage
        May 18, 2013, 4:02 am

        Again, you cannot define what is Palestine by attempting to define what Israel is not.

        LOL! I’ve already explained that the ICJ removed that difficulty. Israel struck out using the “terra nullus” argument, but here you are still standing at the plate and swinging your bat at thin air.

        Judge Higgins noted in her concurring opinion that Palestine had sufficient international legal personality to participate in the Wall case. That’s a right reserved exclusively for States. Determining the status of the “Occupied Palestinian Territories” was the object of the request for an advisory opinion. Judge Higgins said that the applicable laws were clear about that:

        This is not difficult – from Security Council resolution 242 (1967) through to Security Council resolution 1515 (2003), the key underlying requirements have remained the same – that Israel is entitled to exist, to be recognized, and to security, and that the Palestinian people are entitled to their territory, to exercise self-determination, and to have their own State.

        So let’s get this straight:

        a) We are talking about Israel’s reports to the official UN treaty monitoring bodies on its own compliance with the ICCPR and ICESCR in the West Bank and Gaza Strip. Among other things, the ICJ advisory opinion noted that those treaties contain the conventional laws, together with the UN Charter, which establish the inalienable right of the Palestinian people to determine their own political and legal status and exercise “permanent sovereignty” over the resources of the Palestinian territory.

        b) For their own part the Palestinians declared their statehood in 1988. The State of Palestine has subsequently been recognized, as such, by both the international community of states and the UN General Assembly. All of those parties have insisted that Israel is prohibited from annexing or settling in territory acquired during the 1967 war.

        c) The government of Israel has not only asserted that the West Bank and Gaza are NOT its responsibility or part of its sovereign territory or jurisdiction, it claims:

        powers and responsibilities in all civil spheres (including civil and political rights, as well as a variety of security issues, have been transferred to the Palestinian Council, which in any event is directly responsible and accountable vis-a-vis the entire Palestinian population of the West Bank and the Gaza Strip with regard to such issues. In light of this changing reality, and the jurisdiction of the Palestinian Council in these areas, Israel cannot be internationally responsible for ensuring the rights under the ICCPR [or ICESCR] in these areas.

        See CCPR/C/ISR/2001/2, para 8 or E/1990/6/Add.32, para 6-7

        The use of the word “jurisdiction” in that Israeli report has legal consequences. The Rome Statute is based on the laws and customs of war and the conventional laws contained in the Hague Convention, the UN Charter, and the Geneva Conventions. They in-turn are based upon the exercise of “jurisdiction”, not “sovereignty”.

        If the PA has responsibility for implementing the ICCPR and ICESCR in the West Bank and Gaza, then it is responsible for implementing the inhabitant’s decision regarding the statehood and political independence of their territory.

        d) The only tangible manifestation of sovereignty is the exercise of jurisdiction – and Israel claims that belongs to the Palestinians when it comes to implementing and protecting the political, civil, and human rights of Palestinians. The Oslo Accords had explicitly stated that the West Bank and Gaza Strip were under the “jurisdiction” of the Palestinian Council. The agreement stipulated that its authority encompassed all matters that fell “within its territorial, functional and personal jurisdiction”. The Israeli military commander only exercised power “in accordance with international law”. Note: He was always prohibited on that basis from expropriating private property, establishing Jewish settlements, or concluding “special agreements” with local officials to violate any rights of the inhabitants that were protected by Article 49 & etc. of the 4th Geneva Convention.

        e) The ICJ advised that under the terms of the agreements Israel could not subsequently interfere in matters where responsibility had been transferred or placed under the competence of the Palestinian National Authority.

        f) Despite all of that, you insist that the territory is a terra nullus where Israel is still free to commit war crimes and that all of the laws of nations simply do not apply. That’s pretty unconvincing, since that idea violates the content and intent of the UN Charter, the Hague Convention, the Geneva Conventions, and the Rome Statute.

      • talknic
        May 18, 2013, 5:42 am

        Further to @ mondonut

        “Again, you cannot define what is Palestine by attempting to define what Israel is not”

        If territory isn’t Lebanese, Syrian, Jordanian, Egyptian or Israeli, it belongs to someone else, it doesn’t actually matter who. Just so happens tho, what remains of Palestine, is Palestinian.

        Lebanon, Syria, Jordan, Egypt had Internationally recognized borders well before 1948 and Israel’s sovereign extent was defined by the Israeli Government May 15th 1948 “as an independent republic within frontiers approved by the General Assembly of the United Nations in its Resolution of November 29, 1947,” and subsequently recognized as such.

        The activities Israel may or may not engage in as the Occupying Power of any territories “outside the State of Israel” ( MORE link to wp.me ) are determined by the binding International law, the binding UN Charter and relevant binding conventions as reflected, REAFFIRMED and EMPHASIZED in numerous UNGA/UNSC resolutions, REMINDING all the parties of their binding legal obligations.

      • mondonut
        May 19, 2013, 12:12 pm

        talknic says: If territory isn’t Lebanese, Syrian, Jordanian, Egyptian or Israeli, it belongs to someone else …
        =======================================
        Nonsense, despite all your theories and entire website banking on this it simply is not so. Yes, it is occupied by the Israelis; no, it does not belong to any country. It is land subject to multiple claims whose possession and sovereignty will be determined through negotiations.

      • mondonut
        May 19, 2013, 1:02 pm

        Hostage says: LOL! I’ve already explained that the ICJ removed that difficulty. Israel struck out using the “terra nullus” argument, but here you are still standing at the plate and swinging your bat at thin air.
        ==================================================
        First of all an advisory opinion removes nothing at all, and everything that you think to have built upon said advisory opinion falls as well. Additionally none of the commentary related to the rights of self determination and the State of Palestine determines where and what is Palestinian territory.

        For that you have chosen the ICCPR in the hope that Israel’s narrow use of the word “jurisdiction” regarding the civil sphere of the Palestinian population can somehow be transferred to territory itself. But it cannot.

        So tenuous link upon tenuous link, none of which determines the extents of Palestinian national territory any more than your previous “drawing a line around” theory.

      • Hostage
        May 20, 2013, 4:54 am

        First of all an advisory opinion removes nothing at all, and everything that you think to have built upon said advisory opinion falls as well.

        Advisory opinions on the legal consequences of the applicable international laws and state practice are fully dispositive. Israel’s only allies in the case, including the US, UK, et al, argued that there was no need for the ICJ to exercise its advisory jurisdiction, since it had already been universally agreed that the wall and the Israeli settlements were illegal before hand.

        The only thing “that fell” were the childish and nonsensical legal theories authored by people who should have known better, like Meir Shamgar, Yehuda Z. Blum, and Alan Baker. Its hilarious that you keep trying to promulgate that stuff here, when the Israeli government shelved the Levy Commission report and never bothered to publish a complete translation.

        The rest of the world has moved on and recognized Palestine within the 4 June 1967 borders. Even Uncle Sugar rejected the Levy Commission conclusions. See for example “US displeased with Levy Report”: DC official says US ‘does not accept legitimacy of continued Israeli settlement activity and we oppose any effort to legalize settlement outposts’ link to ynetnews.com

        For that you have chosen the ICCPR in the hope that Israel’s narrow use of the word “jurisdiction” regarding the civil sphere of the Palestinian population

        Israel’s use of the term wasn’t really very limited. It stipulated in writing that the authority of the Palestinian Council encompassed all matters that fell “within its territorial, functional and personal jurisdiction” and included formal implementation and reporting on the ICCPR, which is only open to participation by States. Furthermore Israel said that the Palestinians were obliged under the terms of Oslo and the Wye River accords to carry-out responsibilities reserved for the governments of states under norms of international law.

        To return to the subject of this article, any entity that exercises territorial, functional, and personal jurisdiction can refer situations to the ICC or become a party to the Rome Statute.

        FYI, The ICCPR and ICESCR establish all of the inalienable rights listed in Article II of the International Convention on the Suppression and Punishment of the Crime of Apartheid. The latter and the Rome Statute simply establish criminal responsibility for violations.

    • Obsidian
      May 16, 2013, 1:01 pm

      “So why doesn’t the ICC investigate Israeli settlement policy?”

      Maybe because the ICC prefers prosecuting genocidal war criminals rather than getting involved in a land dispute between religious loonies.

      • talknic
        May 17, 2013, 3:35 am

        Obsidian “Maybe because the ICC prefers prosecuting genocidal war criminals rather than getting involved in a land dispute between religious loonies”

        The Palestinian claims are not religious. They’ve been based on legality A) the LoN Covenant. B) The LoN Mandate for Palestine C) The UN Charter D) Numerous UNSC resolutions against Israel for being in breach of the law.

      • Hostage
        May 17, 2013, 4:38 am

        Maybe because the ICC prefers prosecuting genocidal war criminals rather than getting involved in a land dispute between religious loonies.

        The Court is a creature of the Rome Statute. It’s a binding treaty agreement between all of the member States. IIRC, 118 of the 120 states that attended the Rome Conference voted to include Article 8(2)(b)(viii). In any event, all 121 member States have subsequently voted to ratify and retain it.

      • Obsidian
        May 17, 2013, 12:00 pm

        @Hostage

        Here’s some legal material worthy of analysis by your trenchant legal mind.

        On the 2nd of December 1947, three days after the UN vote, the ulama – the chief scholars of theology – of the University of Al-Azhar, in Cairo, perhaps the most important arbiters and authorities in the Sunni Muslim world, declared a “worldwide jihad in defense of Arab Palestine ”.

        In the course of the war, the Ulama of Al-Azhar periodically renewed the fatwa and call to jihad. “The liberation of Palestine [is] a religious duty for all Muslims without exception, great and small. The Islamic and Arab governments should without delay take effectiove and radical measures, military or otherwise,” pronounced the Ulama at the end of April 1948.5

        On the day of the Egyptian Army invasion of Palestine, 15 May, Muhammed Mamun Shinawi, the rector of AlAzhar, declared: “ The hour of “ jihad ” has struck … A hundred of you will defeat a thousand of the infidels … This is the hour in which … . Allah promised paradise … “

        Ibn Taimiya, a major 13th and 14th century theologian, “ the obligation to participate in jihad appears innumerable time in the Koran and the Sunna. Therefore, that is the most important willed [religious] activity a man can undertake. All the sages agree that it is more important than the haj … “

      • MHughes976
        May 17, 2013, 4:24 pm

        To say that Palestinian claims have no basis in standard morality is far from denying the Nakba but it is justifying it, which always seems to me rather worse. I wish it didn’t happen so often around here.

      • Cliff
        May 17, 2013, 5:59 pm

        Worthless quotes that do nothing to undermine the fact that Jewish terrorists stole Palestinian land and drove out the indigenous population.

        In fact, those quotes are simply a natural reaction to a group of immigrants – a minority – attempting to carve up land out from underneath the majority indigenous population.

        No Palestinian majority accepted the Partition. Israel declared itself unilaterally. The Jewish side of the Partition had almost 50 50 Jews and Arabs. Why would the Arabs want to see their land divided towards the minority living among them antagonistically from the very beginning?

        This exotic villainy you paint is the usual Islamophobic garbage that makes it seem as if there is a cartoony conspiracy to destroy Israel for the sake of destroying Israel.

        The Palestinians had as natural a reaction to Zionism as any other indigenous population would to settler-colonialism in their midst, threatening their existence.

        And anyways, Jewish terrorists began ethnically cleansing Palestine before the Arab armies came to war. Months before.

      • RoHa
        May 17, 2013, 11:10 pm

        “On the 2nd of December 1947….”

        And..? Your point?

      • Hostage
        May 18, 2013, 4:33 am

        @Hostage Here’s some legal material worthy of analysis by your trenchant legal mind.

        My trenchant legal mind tells me that:

        a) During the first world war the Arabs and Indians ignored similar calls from the Ottoman Caliphate, which undoubtedly was the most important arbiter and authority in the Muslim world.

        b) The “Sunni Muslim world” was not represented by the 30,000 or so Arabs who entered Palestine to join in the fighting. If the millions of Muslims, including their nuclear powers ever do decide to mobilize and wage a holy war against Israel, the woefully outnumbered Zionists probably won’t be able to keep up with the pace.

        b) Egypt and Palestine were not even part of the same legal jurisdiction. In the Council of the Arab League, it was agreed that the former Mufti, a religious leader who held similar views, was not fit to represent the Palestinian people. For their own part, the majority of Palestinians joined forces with Arab leaders who were willing to make peace with the Zionists, without abandoning their rights or claims. They ended-up in a political union that governed the overwhelming majority of the territory of the former Palestine mandate on both sides of the river.

      • talknic
        May 18, 2013, 5:53 am

        @ Obsidian

        Here’s some legal material worthy of analysis by your trenchant legal mind.

        On the 2nd of December 1947, three days after the UN vote, the ulama – the chief scholars of theology – of the University of Al-Azhar…. etc etc …

        Theological ‘legal material’ is irrrelevant to International Law, the UN Charter or the relevant conventions governing what a state may or may not do in territories outside its sovereign extent and over which it is the Occupying Power.

      • Obsidian
        May 18, 2013, 6:51 am

        @Hostage.

        I doubt whether the Zionists were concerned with overlapping jurisdictions while they were fighting the combined might of the Arab armies.

        That said, both King Farouk of Egypt and his foreign minister, Ahmed Muhammad Khashaba, said during the summer of 1948 that for “ the whole Arab world,” the struggle was a matter of religion; ” it was for them a matter of Jewish religion against their own religion”.

        According to Farouk, the Arab masses were gripped by “ widespread religious fervour … and men … were keen to enter the fray – as the shortest road to heaven.”– Campbell to Bevin, 17 April 1948, PRO FO 371-68370 , and Campbell to FO, 19 May 1948, PRO FO 371-68506.

        Additionally, in April 1948 Sheikh Muhammad Mahawif, the mufti of Egypt, issued a fatwa calling on all Muslims to participate in the jihad in Palestine. His contention was that the Jews intend “ to take over … all the lands of Islam”–Al-Difa’a , 8 April 1948, 2.

        Lastly, with the establishment of the Arab Higher Committee in 1936, the leadership helped orchestrate the revolt in Palestine with the following:

        “ Because of the general feeling of danger that envelops this noble nation, there is a need for solidarity and unity and a focus on strengthening the holy national jihad movement .” Hillel Cohen, Army of Shadows, 97.

        My trenchant legal mind tells me that if you were an actual practicing trial attorney or judge, than your high opinion of ‘the law’ would be greatly diminished.

      • Obsidian
        May 18, 2013, 12:50 pm

        @RoHa

        Well.
        I’d said that, “…the ICC prefers prosecuting genocidal war criminals rather than getting involved in a land dispute between religious loonies.”
        Than Talknic responded by saying, “The Palestinian claims are not religious.”
        To which I responded, ““On the 2nd of December 1947….”.

        Have I cleared things up any?

      • Obsidian
        May 18, 2013, 2:48 pm

        @Cliff

        ” Jewish terrorists stole Palestinian land and drove out the indigenous population.”

        Really?

        In August 1948 Emil Ghoury, a member of the Arab Higher Committee, the “Cabinet” of the Palestinian Arab national movement, blamed the Arab states for creating the Palestinian refugee problem. He argued that the Arab states had pushed and cajoled the Arabs of Palestine into launching hostilities against the Jewish community in Palestine in defiance of the United Nations partition resolution, while the Palestinians were disorganised and unprepared for war, and they themselves launched their invasion of Israel, in May 1948, while disunited and insufficiently prepared.
        The war had resulted in the creation of the refugee problem. He rejected a solution of the problem by way of repatriation arguing that the Jews “ would [then] hold them hostage and torture them severely ”. Ghoury assumed that a refugee return would be achieved through negotiations with Israel and an agreement so achieved would mark the beginning of Arab acquiescence in Israel’s existence. “We must inculcate in the heart of every Arab,” he said, “ hatred for the Jews ” and we must the renew “ the jihad against Israel”. The refugees, he concluded, would return to their places only after Palestine was reconquered–“Emil Ghoury’s Response to the Telegraph on the Matter of the Refugees”, August 1948, HA 105\102.

        Another worthless quote?

      • pjdude
        May 19, 2013, 3:37 am

        What invasion of israel there was no invasion I the war of Zionist aggression and conquest also known as the Israeli ” war of independence”. The only ones doing any invading than were the Israelis.

      • Hostage
        May 19, 2013, 4:16 am

        Have I cleared things up any?

        Yes, you’ve made it clear that you can’t tell the difference between the Egptians and the Palestinians who ended-up actually governing the territory.

        According to the UN Yearbook for 1946-47:

        “The Egyptian representative explained, in reply to various statements, that the Arab States did not represent the Palestinian Arab population.”

        link to unispal.un.org

        FYI, the Jewish Agency had been advising US officials in Cairo for years that it was pointless to continue to talk of “negotiations” with Arabs, and that it was obvious that any solution satisfactory to Zionists would have to be “imposed” on the Arabs by force. They made it clear that was only realistic line of action the Jewish Agency intended to pursue. See the cable from the US Consul, Kirk on that subject in the FRUS — link to digicoll.library.wisc.edu

        * On the day the UN partition was adopted, one of the leading Cairo newspapers came out in favor of the partition plan as a means of ending further Zionist aggression. See link to jpress.org.il

        There is also ample documentary evidence that “the Arab world” had acquiesced to the idea of a fair partition, and only opposed the manifestly disporportionate division contained in the UN proposal:

        *In “Pan-Arabism Before Nasser” (page 98), Michael Doran reported that Eliyahu Sasson made at least two trips in late 1946 to lobby Egyptian officials regarding the partition of Palestine. Sasson reported that he had been warmly welcomed by the Prime Minister, the Foreign Minister, and the Secretary General of the Arab League. Doran says that King Faruq and other palace advisers received reports on the partition talks and did nothing to scuttle them.

        *Joseph Heller, “The birth of Israel, 1945-1949: Ben-Gurion and his critics”, University Press of Florida, 2000, says that in the Spring of 1946 Sasson was dispatched to Egypt and that he reported that, with the exception of Saudi Arabia, there was a virtually unanimous consensus favorable to partition among the members of the Arab League.

        * Scroll down and read: Hebron Mayor Challenges Egyptians to Tell Truth, Palestine Post, December 14th, 1948 link to jpress.org.il

        * In his book A Soldier with the Arabs, Glubb Pasha wrote that the Egyptians weren’t necessarily viewed as Arabs by the leadership of the Jordanian regime. Eygptians were viewed as descendants of their own ancient dynasty. Egypt proper was never described as part of the Arab homeland during the discussions between McMahon and the Sharif Hussein, and Egyptians had not participatred in the Arab Revolt of 1916.

        King Farouk and his dynasty were viewed along with the British as foreign interlopers. That’s definately the role Egypt has played in governing Gaza and interfering in the domestic affairs of the former Palestinian mandated territories of Transjordan and Palestine. FYI, Farouk was a descendant on his father’s side of the Albanian mercenary, Muhammad Ali, who galvanized the first Palestinian national revolt, when he dispatched his son at the head of an army to conqueror the country along with the Lebanon and Syria. On his maternal side, Farouk was descended from Colonel Sèves, an officer in the army of Napoleon Bonaparte, who became better known as Suleiman Pasha during Muhammad Ali’s reign. Farouk and his ministers had collaborated extensively with the Jewish Agency and were really in no position to serve as honest brokers or representatives of the Palestinians, much less the entire Arab world.

      • Hostage
        May 19, 2013, 4:27 am

        Really? In August 1948 Emil Ghoury, a member of the Arab Higher Committee, the “Cabinet” of the Palestinian Arab national movement, blamed the Arab states for creating the Palestinian refugee problem.

        The AHC had no such official status at that time.

        *The Arab Higher Committee (AHC) and the Mufti were not the formal or elected representatives of the people of Palestine after WWII. They were a creation of the Arab League. Avi Shlaim noted that when the Arab Higher Committee (AHC) was reestablished in 1946 after a nine-year hiatus, it was not established by the various Palestinian political parties – as had been the case in the past when it was originally founded in 1936 – but rather by a decision of the Arab League of States. See page 1 of Avi Shlaim, The Rise and Fall of the All-Palestine Government in Gaza, Journal of Palestine Studies. 20: 37–53. (2001)
        *In February of 1948, shortly after the UN adopted its plan of partition, the Council of the Arab League decided not to recognize the Arab Higher Committee or the Mufti as the representatives of the Palestinian people. Thereafter, all of the Leagues’ affairs were handled through its own Palestine Council, not through the Mufti or the AHC. See Politics in Palestine: Arab factionalism and social disintegration, 1939-1948, By Issa Khalaf, University of New York Press, 1991, ISBN 0-7914-0708-X, page 290.

      • Obsidian
        May 19, 2013, 1:34 pm

        First. Your cites contradict each other.

        Second. When are you going to prise open the Arab States archives and finally inform us of what the other side in this conflict had to say?

      • Obsidian
        May 20, 2013, 1:21 am

        @Hostage

        “..Glubb Pasha wrote that the Egyptians weren’t necessarily viewed as Arabs by the leadership of the Jordanian regime. Eygptians were viewed as descendants of their own ancient dynasty”.

        Funny that you mention Glubb Pasha. He once said that, “The Arabs of Palestine, in reality have little Arab blood in their veins”. — Benny Morris, The Road to Jerusalem: Glubb Pasha, Palestine. pg. 14.

      • Hostage
        May 20, 2013, 2:38 am

        First. Your cites contradict each other.

        No they don’t, they reflect the fact that the various Arab factions and states opposed one another back then, just as they do today. There is no contradiction at all in the historical record presented by Avi Shlaim, Michael Doran, Joseph Heller, or Benny Morris. They all document the fact that the Arab States and their leaders accepted the principle of partition advanced by the Jewish Agency negotiators, and only disagreed over the fairness of the territorial division contained in the final UN plan.

        Funny that you mention Glubb Pasha. He once said that, “The Arabs of Palestine, in reality have little Arab blood in their veins”. — Benny Morris, The Road to Jerusalem: Glubb Pasha, Palestine. pg. 14.

        I don’t believe it’s funny at all. That’s why I went out of my way to quote the official documentary record of the United Nations on that particular point. The representative of Egypt was perfectly correct when he explained that the “Arab States” had no credentials or other basis upon which to represent the Palestinian people.

        Despite the dim-witted attempts to assign blame to the Palestinian people for anything and everything that was ever done by “an Arab” or Muslim living somewhere else, the actors don’t necessarily represent members of the Palestinian Christian, Druze, Bahai, or other religious orders or the multi-ethnic culture of non-Arab inhabitants of Turkish, Circassian, or other origins. Your shopworn propaganda is always going to be a hasbara failure because it relies on bigotry and false racial steroetypes.

      • Obsidian
        May 20, 2013, 3:05 am

        @talknic

        ‘Theological ‘legal material’ is irrrelevant to International Law’

        There are hundreds of millions of people who will say that you have it backwards.

      • Hostage
        May 20, 2013, 5:05 am

        P.S. The FRUS and Israel’s own “Documents on Israeli Foreign Policy” series provide scores of examples where Israel privately admitted it intended to resort to the use of force, while officially demanding that the Arab neighbors enter into neotiations.

        The only thing that’s changed is that, after the 1967 War, Israel has publicly reserved its right to use force as an instrument of its national policy in the conduct of its foreign relations with others, while insisting that other states be demilitarized and claiming there is no one to negotiate with on the other side.

        Frankly that attitude has prevailed ever since Jabotinsky departed the Zionist Executive, while complaining publicly about the subtrefuge of “endless talks”:

        This colonization can, therefore, continue and develop only under the protection of a force independent of the local population – an iron wall which the native population cannot break through. This is, in toto, our policy towards the Arabs. To formulate it any other way would only be hypocrisy.

        Not only must this be so, it is so whether we admit it or not. . . . All of us, without exception, are constantly demanding that this power strictly fulfill its obligations. In this sense, there are no meaningful differences between our “militarists” and our “vegetarians.” One prefers an iron wall of Jewish bayonets, the other proposes an iron wall of British bayonets, the third proposes an agreement with Baghdad, and appears to be satisfied with Baghdad’s bayonets – a strange and somewhat risky taste’ but we all applaud, day and night, the iron wall. We would destroy our cause if we proclaimed the necessity of an agreement, and fill the minds of the Mandatory with the belief that we do not need an iron wall, but rather endless talks. Such a proclamation can only harm us. Therefore it is our sacred duty to expose such talk and prove that it is a snare and a delusion.

        link to danielpipes.org

        Netanyahu, and people like Daniel Pipes, were raised-up and nourished on those fascist political beliefs. In the Iron Wall Jabotinsky documented the Zionist practice of enlisting the Arab heads of state as allies or strawmen, working against the national interests of the Palestinians.

      • talknic
        May 20, 2013, 5:58 am

        @ Obsidian “There are hundreds of millions of people who will say that you have it backwards.”

        There’s nothing in International law giving your theory any credence.

      • talknic
        May 20, 2013, 8:48 am

        @ Obsidian “Emil Ghoury, a member of the Arab Higher Committee”

        Benny Morris‘s “a member”….. is not THE Arab Higher Committee.

        “the Palestinians were disorganised and unprepared for war, and they themselves launched their invasion of Israel, in May 1948″

        Strange …. The Israeli Government website tells us the Arab states invaded “Palestine” link to mfa.gov.il

        There’s no UNSC resolution condemning any invasion of Israel in 1948 (or at any other time).

        There are no UNSC resolution or Armistice Agreement calls for any Arab state to withdraw from any Israeli territory

        No USNC resolution calls for peace in Israel (they do call for “peace in Palestine”)

        The Israeli Government in May 22nd 1948 confirmed to the UNSC that Israeli territories were not invaded and that Israel operated in territories “outside the State of Israel” .. “in Palestine” link to wp.me

      • pjdude
        May 17, 2013, 7:45 pm

        The settlements are war crimes commuted by genocidal people.

  9. pabelmont
    May 16, 2013, 10:13 am

    Annie and Hostage and HarryLaw and others: great job!

    NPR’s on-line news reported this, but there seems to have been no report “on air” — according to NPR’s search mechanism.

    What bent reporting we get from NPR. I just gave WNYC $1.00 with a message about “bent” reporting. Wonder if small-money means as much to WNYC as big-money must do.

    I guess they try to serve as the USA’s lackeys just as many commenters above believe ICC’s prosecutor will do.

  10. ritzl
    May 16, 2013, 11:52 am

    Great job Annie and Hostage! Thanks.

  11. lysias
    May 16, 2013, 1:57 pm

    Craig Murray now has a piece up on this development: The Mavi Marmara Murders. Catchy title.

    • Dutch
      May 16, 2013, 3:18 pm

      @ Lysias
      ‘Catchy title’.

      And a very interesting article.

    • Citizen
      May 16, 2013, 3:39 pm

      Thanks, lysias
      Had no clue of the flag shift that changed the base jurisdiction of the Marvi Marmara on the high seas. So, what, there’s an Israel Lobby in Turkey that is very influential?

      • lysias
        May 17, 2013, 10:01 am

        The “deep state” in Turkey has always wanted close relations with Israel. But I’m surprised that the deep state retains so much power under Erdogan.

      • MHughes976
        May 17, 2013, 4:18 pm

        Isn’t it the deep purpose of all Turkish governments to reverse the verdict of WW1?

      • MRW
        May 19, 2013, 7:59 am

        lysias, Citizen, little more complicated than that. Everything changed in 2007.

        WHEN KEMAL ATATURK RECITED SHEMA YISRAEL
        “It’s My Secret Prayer, Too,” He Confessed
        By Hillel Halkin, Published in The Forward, January 28, 1994, scrubbed from The Forward and Lexis-Nexis. Available behind a paywall from Highbeam Research, which cites The Forward, but copy available here, scroll down:
        link to sunniforum.com
        Highbeam cite:
        link to highbeam.com

        Ataturk’s Turkey Overturned
        By HILLEL HALKIN | July 24, 2007
        link to nysun.com

        More background on Ataturk:
        Mustafa Kemal Atatürk’s Jewish Roots
        link to turkishwrestling.wordpress.com

      • lysias
        May 20, 2013, 10:23 am

        I’ve read contradictory accounts on whether Ataturk was a Dönme. However, even if he was, you should know that Jews in general do not regard the Dönme as still being Jews. When Muslims in Salonika were expelled to Turkey around 1922, some of the Dönme asked the rabbis there to classify them as Jews, so that they would be exempted from the expulsion. The rabbis refused, and the Dönme had to go to Turkey. I believe that the Dönme themselves regard themselves as being both genuine Jews and genuine Muslims (sort of the way the early Jewish Christians regarded themselves).

        Under the heavy wealth tax (Varlık Vergisi) of 1942-4, both Jews and Dönme, as well as other non-Muslims, had to pay much higher rates, so high that many of them could not pay and were sent to a forced labor camp. Even those who could pay were nearly wiped out financially. This tax was imposed by Ataturk’s successors and party comrades less than four years after Ataturk’s death.

  12. Citizen
    May 16, 2013, 3:44 pm

    Interesting, there’s nothing on the ship’s registry in its Wikipedia entry.

    • MRW
      May 19, 2013, 8:04 am

      It was a big to-do at the time. Craig Murray had a number of posts on it then. Former ambassador Murray had written some of the law of the sea stuff so he was actively batting down the hasbarists who were weaving their standard San Remo cat’s cradle of what they thought the laws were, and how the Israelis were justified in going into international waters and slaughtering people in a gunless boat.

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