Transnational legal actions threaten to end Israeli impunity

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The past few months have been a headache for a select group of Israel’s political echelon. International solidarity activists and their legal advocates have begun to gain traction in a series of petitions alleging war crimes in a variety of international judicial forums. The development of this legal strategy has not received much recognition, but the implications are real; a game-changer in the fight for justice and accountability in Palestine.

Many of us will never forget the 2010 Freedom Flotilla controversy. In a courageous display of determination a fleet of six ships sailed to Gaza in protest of the blockade instituted since 2007. The tragedy reached us when we heard that one vessel—the Mavi Marmara, was raided by an IDF Special Forces unit while still traveling in international waters. Immediately, as competing narratives were raised, contested and rebuked in the media, Israel proclaimed its actions were justified and that the interception constituted a necessary act of self-defense. A video circulated showing the IDF forces attacked by steel-rod bearing passengers. Another video attempted to challenge Israel’s control of the narrative, showing passengers shot by the soldiers. The conversation quickly devolved into a vehement discourse over who attacked who first.

9 Turkish human rights activists died on board of the Mavi Marmara, and 50 to 55 passengers were injured in the course of the raid. One victim fell into a coma and died sometime later. A case against the Israeli authorities was originally launched in a Turkish court but after pressure from Turkish and Israeli officials, it was closed before yielding any results.

Multiple investigations have been launched into the matter. The Israeli government’s Turkel Report concluded that the IDF personnel acted “Professionally” and “in conformity to international law.” The UN Inquiry, head by Sir Geoffrey Palmer report found that the IDF forces faced “organized” violent resistance, but that Israel provided no satisfactory explanation as to the death of 9 activists and was unable to account for or counter the forensic evidence, which suggested some victims were shot multiple times in the head or neck, in close range. The Palmer report also found that detainees were harassed, intimidated, and physically mistreated.

IHH, the organization which coordinated the Freedom Flotilla mission, has previously alleged that all of the victims were wielding cameras and recording devices when killed. The Palmer report also notes that the material belongings of some passengers was unjustly confiscated. According to Maayan Amir, a researcher with the investigative group Forensic Architecture, “After taking control of the ship, the Israeli military confiscated all memory cards of cameras, mobile phones, hard drives, and videos they found there. These images were selectively mobilised to support the Israeli narrative of the event…”.

Conflicting narratives remain at the heart of the Freedom Flotilla affair. The main obstacle in the course of achieving justice for the victims of the raid is still conclusive information. Those who survived the affair and family members of loved ones who died on the ship have been turning to the courts in order to achieve redress for their grievances.     

In bringing their cases in front of international legal institutions petitioners hope that the concept of Universal Jurisdiction over war crimes would apply and that the officials who made the decision to launch the raid would be held accountable by a fit and fair judiciary.

Most recently, three Spanish citizens who were on board of the Mavi Marmara petitioned the Spanish Supreme Court in Madrid. As a result, this past month, Judge Jose de la Mata, requested that Spanish police authorities inform the court if Prime Minister Benjamin Netanyahu, or other members of the so-called Forum of Seven, an ad hoc decision-making body concerned with security protocols, set foot on Spanish soil. The Forum of Seven includes Netanyahu, Ehud Barak, Avigdor Lieberman, Moshe ya’alon, Eli Yishai, Benny Begin, and Maron Eliezer.

This decision, which amounts to an arrest warrant for the Israeli officials, comes as a surprise to the Israeli government after it has attempted to dissuade the Spanish government from pursuing such actions. In a statement, Foreign Ministry Spokesperson Emmanuel Nachshon called the Judge’s decision a “provocation”, and added that the Israeli government is “working with the Spanish authorities to get it cancelled. We hope it will be over soon”.

In conjunction to the developments in the Spanish Court, Judges in the International Criminal Court have continuously asked Prosecutor Fatou Bensouda to reconsider her previous decision not to investigate the Mavi Marmara case. The case was sent to the ICC on behalf of the Comoros Island, to which the Marmara vessel was registered. In the ICC investigative discretion solely lies with current Prosecutor Bensouda. The Prosecutor has stated that she believes the Marmara affair does not constitute a case of sufficient “gravity” as mandated according to her investigative powers by Rome Statute. She has described her decision to refrain from further investigations as one based on a prioritization of scale in matters of war crimes. In a statement issued to the Court in the course of the preliminary investigation that took place in 2014, Bensouda said:

“Following a thorough legal and factual analysis of the information available, I have concluded that there is a reasonable basis to believe that war crimes under the jurisdiction of the International Criminal Court (“ICC” or the “Court”) were committed on one of the vessels, the Mavi Marmara, when Israeli Defense Forces intercepted the “Gaza Freedom Flotilla” on 31 May 2010. However, after carefully assessing all relevant considerations, I have concluded that the potential case(s) likely arising from an investigation into this incident would not be of “sufficient gravity” to justify further action by the ICC.  The gravity requirement is an explicit legal criteria set by the Rome Statute.“

The case was originally heard in the Pre-Trial chambers of the ICC, and most recently was reviewed by the Appeals Chamber where Bensouda reiterated that she does not believe there exist sufficient details of grievance to warrant an investigation. If the Prosecutor stands her ground, the ICC will not investigate the Marmara affair.

The third forum which recently evaluated the 2010 affair was a California court. In October, attorneys acting on behalf of the family of Furkan Dogan, the youngest victim among the passengers, who held a dual Turkish and American citizenship, presented Ehud Barak official notification of a legal claim filed against him. Barak has previously served as Israel’s Prime Minister and was the Defense Minister during the time of the Mavi Marmara raid. The Foreign Ministry Spokesperson accused the advocates behind the complaint of lawfare, and stated that this case was but another “cynical attack” on Israel. The case of Furkan Dogan has been previously championed by the Center for Constitutional Rights, which filed multiple FOIA requests demanding disclosures of information that may be possessed by U.S authorities. This current case is filed in a civil court according to Alien Tort Claims.   

We cannot predict whether these cases will trigger anything more significant than consternation and rebuke from Israeli spokespersons, but it remains obvious that these cases developing outside of Israeli courts would not have been possible if solidarity activists did not leverage their privileged possession of foreign passports and attempted to utilize international courts in trigger concerns of Universal Jurisdiction and global accountability for war crimes. Neither Israeli nor international courts enjoy a history of legal precedents upholding the human rights of Palestinians over the military occupation and its authorities, but at least one of those spheres—the transnational one, is showing potential.

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As to videos, etc., of Mavi Marmara events, the confiscation and/or destruction of such evidence by Israel would — in some systems of jurisprudence — be regarded as “spoliation” (spoiling) of evidence by a likely party in a situation where litigation could be anticipated; and thereafter used, in the litigation so anticipated, to create a “legal presumption” that the stories that would have been backed up by that evidence (videos, etc.) were true. (That is,… Read more »

One can only hope there will be justice out of some process one of these days. I know there won’t be if zionists or their supporters continue to subvert our laws and political systems.

The Turkish case is still going strong. I just returned from Turkey where I testified. The Turkish court had issued a Red Notice for 4 Israeli commanders. A Turkish lawyer explained that somewhere in the Turkish govt- perhaps the Foreign Ministry,-the notices are ‘stuck.’ But because this trial has been attended by so many lawyers form other nations over the past years, the South African lawyer who attended the trial in Turkey last Wednesday said… Read more »

How do you maintain innocence when “as previously alleged that all of the victims were wielding cameras and recording devices when killed. The Palmer report also notes that the material belongings of some passengers was unjustly confiscated. According to Maayan Amir, a researcher with the investigative group Forensic Architecture, “After taking control of the ship, the Israeli military confiscated all memory cards of cameras, mobile phones, hard drives, and videos they found there. These images… Read more »

@ Pabelmont (That is, a victim of Israeli aggression would say, my claim is that such and such happened, and I would offer my videos in evidence, but since those videos were seized or destroyed by Israel, I ask the court to regard my story as adequately proved even without the only hard evidence that might ever have been available.) Just as well the Nazis were such meticulous bookkeepers then – otherwise there might have… Read more »