Legal Processes in Justice for Freedom Flotilla 2010

7/30/2019 Legal Processes in Justice for Freedom Flotilla 2010

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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 Istanbuls alayan Courthouse. The case was opened in Turkeyafter 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 personalfreedom 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.


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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 Israeliattempts at out of court settlement, in particular to offer cash compensation

directly with the victims families, suggests otherwise. There is a real possibilityin 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 fortheir 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 1stJune 2010, the President of the Security Council

made a statementcalling for a prompt, impartial, credible and transparent

investigation, seehttp://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-

8CD3-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 shipsand decided to commission a fact-finding investigation into the incident, see

http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-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,

seehttp://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-

8CD3-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.
http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/IP%20SPRST%202010%209.pdfhttp://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/IP%20SPRST%202010%209.pdfhttp://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/IP%20SPRST%202010%209.pdfhttp://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/IP%20A%20HRC%20RES%2014%201.pdfhttp://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/IP%20A%20HRC%20RES%2014%201.pdfhttp://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/IP%20A%20HRC%20RES%2014%201.pdfhttp://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/IP%20S2010%20414.pdfhttp://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/IP%20S2010%20414.pdfhttp://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/IP%20S2010%20414.pdfhttp://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/IP%20S2010%20414.pdfhttp://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/IP%20S2010%20414.pdfhttp://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/IP%20S2010%20414.pdfhttp://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/IP%20A%20HRC%20RES%2014%201.pdfhttp://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/IP%20A%20HRC%20RES%2014%201.pdfhttp://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/IP%20SPRST%202010%209.pdfhttp://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/IP%20SPRST%202010%209.pdf


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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 victimshave 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.

Turkeys 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 Israelis 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.

Documents

Legal Processes in Justice for Freedom Flotilla 2010