The president of the International Criminal Court, Song Sang-Hyun, appointed a three-judge panel this week to consider preliminary procedural hurdles to opening a criminal investigation against Israel.
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The request for the criminal probe, filed by the African country Comoros, stems from Israel’s raid on a Turkish-sponsored flotilla to Gaza in May 2010. Nine Turks were killed by Israeli soldiers after passengers attacked the boarding party with iron bars, clubs and slingshots.
This is the first time the ICC, which sits in The Hague, has considered opening an investigation against Israel, which has not joined the court. The Palestinian Authority asked it to do so after Operation Cast Lead in Gaza in 2009, but the court rejected that request on the grounds that the PA was not a state.
Comoros, a party to the ICC, claims it has standing to file the case because one of the ships in the flotilla changed its registration a few days before setting sail, and thus the alleged crimes took place aboard a Comoros-flagged ship. Its request was filed on May 14 by a Turkish law firm.
ICC prosecutor Fatou Bensouda said that before an investigation could begin, a preliminary inquiry was needed to see if the alleged crimes were serious enough to warrant the court’s intervention. Since its establishment in 2002, the ICC has dealt only with cases involving hundreds or thousands of victims.
Additionally, the court must determine whether the case has already been adequately investigated by other bodies, in which case it would have no jurisdiction. The incident has in fact been investigated three times − by Israel’s Turkel Committee, the UN’s Palmer Committee and the UN Human Rights Council, but none were criminal investigations.
According to attorney Nick Kaufman, a defense attorney at the ICC, the court could have rejected the case without a hearing had it considered it obviously beyond its jurisdiction. Therefore, he noted, “even if this is a procedural process, this is the first time a decision of this sort has been made − one that says there is a judicial address at an international court for criminal complaints against Israel.”
Prof. Aeyal Gross, an expert in international law from Tel Aviv University who occasionally contributes legal commentary to Haaretz, noted that while the ICC deals with criminal cases against individuals rather than countries, this case potentially involves several different levels of Israeli officials.