Account of my understanding of the legal routes to justice in the case of the attack on the Freedom Flotilla 2010 having

attended the hearing on 6th November 2012 What are we doing at court in Turkey? On Tuesday 6th November a number of international witnesses came to give evidence at Istanbul’s Çağlayan Courthouse. The case was opened in Turkey after the Office of the Public Prosecutor carried out an investigation into the attack and filed it at the 7th High Criminal Court on 28 May 2012 (file number 2012/264). The case is conducted under Turkish Penal code and the Court is hearing evidence in order to decide whether or not four named individuals from the Israeli military are guilty of offences including voluntary manslaughter, attempted voluntary manslaughter, intentionally causing grievously bodily harm, plundering, abducting or confiscating maritime or railway transportation vehicles, intentionally causing damage to property, deprivation of personal freedom and inflicting torture and maltreatment. Israeli individuals are being prosecuted under Turkish law in a national court for offences that broadly match offences under international humanitarian and human rights law namely willful killing, torture and inhumane treatment, willfully causing great suffering or serious injury to body or health, arbitrary arrest and detention, restriction of the freedom of expression, confiscation of personal belongings. The case is unusual because it includes witness testimony of international witnesses and is prosecuted against nationals of another country, namely Israel, in a national court in Turkey thus internationalising domestic legal processes. The Israeli defendants The four men indicted are Chief of General Staff Rau Gavriel Ashkenazi, Naval Forces Commander Eliezer Alfred Maron, Air Forces Intelligence Director Avishay Levi and Chief of Israeli Military Intelligence Amos Yadlin. The prosecution is currently limited to the Israeli military unit that prepared and carried out the operation plan with Ashkenazi as the leading figure. Other civilian and military figures involved in the attack may be added to the case as the investigation continues. The individuals were formally summonsed and invited to defend themselves in Court in Turkey however they did not sign the summons that were delivered and have not appeared at the hearing. In their absence Turkish law appoints lawyers in their defence and these were also present in Court in Istanbul during the opening of the case. Political or legal prosecution? The opening of the case is a legal decision and appears to be separate to political negotiations. Indeed it came as a surprise to IHH lawyers who have been working with scores of other lawyers representing the victims that the Court decided to open the case in Turkey because all parties are aware that there have been ongoing political negotiations. There has been no public comment from the Turkish government about the case.

Does anyone in Israel care? Although public commentary from Tel Aviv has dismissed the proceedings as a ‘show trial’ significant activity occurring prior to the case in the form of Israeli attempts at out of court settlement, in particular to offer cash compensation directly with the victims’ families, suggests otherwise. There is a real possibility in future of the arrest of the individuals; Turkey and Israel are both signatories to the European Convention on Extradition so a ‘red notice’ could be issued for their arrest through Interpol. Other legal remedies There are several legal processes aiming to achieve justice in the case of the Israeli attack on the Freedom Flotilla. The case in Turkish court is just one of the three main types of legal route being followed. The first route, which effectively failed, was through the international human rights and humanitarian law processes of UN bodies and agencies. Immediately after the incident, on the 1st June 2010, the President of the Security Council made a statement calling for a “prompt, impartial, credible and transparent investigation”, see http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C8CD3-CF6E4FF96FF9%7D/IP%20SPRST%202010%209.pdf . On the 2nd June the Human Rights Council passed a resolution which condemned “the outrageous attack by the Israeli forces against the humanitarian flotilla of ships” and decided to commission a fact-finding investigation into the incident, see http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C8CD3-CF6E4FF96FF9%7D/IP%20A%20HRC%20RES%2014%201.pdf Israel immediately refused to co-operate with the UN Human Rights Council and as a result on 3rd August 2010 the UN Secretary General Ban Ki Moon established a new Panel of Inquiry, which both Turkey and Israel agreed to co-operate with, see http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C8CD3-CF6E4FF96FF9%7D/IP%20S2010%20414.pdf . This Panel was tasked with reading reports produced by Israel, Turkey and the Human Rights Council with a mandate of completing an inquiry of the nature requested by the President of the Security Council and to make recommendations on the prevention of future incidents of its nature. The only part of the mandate to be upheld by the final report (the Palmer Report) was its promptness. The outcome of the Panel of Inquiry was a document that failed to resolve the dispute and failed to meet its mandate of impartiality, credibility and transparency. The Palmer Report concluded (beyond its ability and mandate) that the blockade of Gaza was legal under international law (in contrast to the conclusions of the panel of international judges appointed by the Human Rights Council) and that the attack had been disproportionately violent, for which it requested that Israel apologise. Turkey would not accept that the blockade was legal and Israel would not apologise.

The second potential route to legal remedy is at the International Criminal Court (ICC). The ICC is an international court that holds individuals to account for war crimes however it only has jurisdiction to investigate a case if either the referring state or the state to which the individuals accused of the crime is a signatory to the Rome Statute. The Court can accept complaints from individuals and organisations rather than states and some individual victims have lodged a formal complaint and evidence at the ICC. However neither Israel nor Turkey are signatories to the Rome Statute, which is the international treaty that states sign in order to agree to the jurisdiction of the ICC. The case has not been opened for investigation at the ICC but the information remains lodged with the Prosecutor and may be opened for investigation in future if the circumstances of the case change in order for jurisdiction to be available, for example should a state which is signatory to the Rome Statute make a complaint. The third legal route is that of national courts and the Turkish case is the first example of this. Other national cases are potentially in Belgium, Spain, South Africa and Greece. Political negotiations Turkey and Israel have been negotiating over ways to resolve the dispute. Turkey’s position named three conditions, firstly an official apology from Israel, secondly the easing of the blockade of Gaza and thirdly compensation to be paid to the victims. However on conditions one and two the Israeli’s appear unwilling to compromise. Onward path The families of the victims are working together and have established conditions that they want to see before resolving this dispute. They say that those responsible must be legally accountable for their actions, there must be a formal apology, the issue of the ending of the blockade must be discussed and compensation must be paid, the Turkish court case is part of the call for legal accountability. In terms of the length of the case the proceedings are likely to continue intermittently for some years. It remains to be seen what the specific outcome of this hearing will be and the next legal steps. On Monday 5th November the group of international lawyer and lawyers from Turkish firms Yildirim and Elmadog Hukuk Buroso (whose lawyers are working pro bono) met and agreed to establish a committee to address future legal issues in relation to the case.

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