International Criminal Court Scheduling Order for the Mavi Marmara & Comoros case

ICC Scheduling Order for Mavi Marmara & Comoros

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Situation on the Registered Vessels of Comoros, Greece and Cambodia: ICC Appeals Chamber to deliver its Judgment on Prosecutor’s appeal on 2 September 2019

Media Advisory : 

Situation on the Registered Vessels of Comoros, Greece and Cambodia: ICC Appeals Chamber to deliver its Judgment on Prosecutor’s appeal on 2 September 2019

ICC-CPI-20190503–MA238

On 2 September 2019 at 10:30 a.m. (The Hague local time), the Appeals Chamber of the International Criminal Court (“ICC” or “the Court”), Judge Solomy Balungi Bossa presiding, will deliver its judgment on the appeal of the Prosecutor against thedecision of Pre-Trial Chamber I on the “Application for Judicial Review by the Government of the Union of the Comoros”‘ of 15 November 2018. The judgement will be delivered by the Appeals Chamber in open court.

Background: On 14 May 2013, a referral was received by the Office of the Prosecutor from the authorities of the Union of the Comoros, a State Party to the Rome Statute, in relation to an attack on 31 May 2010 by the Israeli Defence Forces on the Humanitarian Aid Flotilla bound for the Gaza strip. On 6 November 2014, the Office of the Prosecutor had announced that it was closing its preliminary examination of the situation referred by the Union of the Comoros because, in the Prosecutor’s view, 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.

On 16 July 2015,  Pre-Trial Chamber I of the ICC, by majority, granted the request of the Union of Comoros to review the decision of the ICC Prosecutor not to investigate the attack and requested the Prosecutor to reconsider her decision. The Prosecutor filed her decision on 29 November 2017 reaffirming her previous decision of 6 November 2014  to close this preliminary examination. On 15 November 2018, Pre-Trial Chamber I decided to grant the Union of Comoros’s furtherapplication for judicial review. The Chamber ordered the Prosecutor to reconsider its 6 November 2014 Decision in light of the specific directions of the 16 July 2015 Decision. The Prosecutor appealed this decision.

Scheduling Order for delivery of judgment on the appeal of the Prosecutor against the decision of Pre-Trial Chamber I of 15 November 2018 entitled ‘Decision on the “Application for Judicial Review by the Government of the Union of the Comoros”‘


For further information, please contact Fadi El Abdallah, Spokesperson and Head of Public Affairs Unit, International Criminal Court, by telephone at: +31 (0)70 515-9152 or +31 (0)6 46448938 or by e-mail at: fadi.el-abdallah@icc-cpi.int

You can also follow the Court’s activities on TwitterFacebookTumblrYouTubeInstagram and Flickr

International Criminal Court, Appeals Chamber Holds Oral Hearings re Opening Investigation of the 2010 Israeli Attack on the Mavi Marmara of the Gaza Freedom Flotilla

UPDATE: The Appeals Chamber of the International Criminal Court (ICC) heard this matter on May 1, 2019, and will deliver its judgment on the appeal on 3 September 2019. The judgement will be delivered by the Appeals Chamber in open court. For more information, see the ICC’s Media Advisory and the Scheduling Order.

For immediate release
1 May 2019 

International Criminal Court, Appeals Chamber Holds Oral Hearings re Opening Investigation of the 2010 Israeli Attack on the Mavi Marmara of the Gaza Freedom Flotilla

Today, the Appeals Chamber of the International Criminal Court (ICC) is holding an oral hearing before the five judges of the Appeals Chamber. This is a significant, historical occasion for our case and in the history of the ICC, as it is very rare that this kind of oral hearing occurs.

Since the deadly and illegal attack by Israeli soldiers on the Mavi Marmara ship and other boats in the Gaza Freedom Flotilla in 2010, the Freedom Flotilla Coalition (FFC) has been seeking justice at national and international courts on behalf of the families of the 10 people who were killed by Israeli Occupation Forces (IOF) in international waters.

The people killed by the IOF on 31 May 2010 were:
Ali Haydar Bengi
Ceniz Songür
Çetin Topçuoglu
Necdet Yildirim
Ibrahim Bilgen
Fahri Yaldiz
Furkan Doğan
Cevdet Kiliçlar
Cengiz Akyüz
Ugur Süleyman Söylemez (died in 2014 as a result of his wounds)

The legal process began on 14 May, 2013 when an application to the ICC was made on behalf of the Union of the Comoros, the flag state of the Mavi Marmara, as well as for all of the represented victims seeking justice (https://www.icc-cpi.int/comoros). Since the commencement of the legal process, communications with the ICC have continued.

On 6 November 2014, the ICC Prosecutor decided not to open an investigation into the Israeli attack on the six ships of the Gaza Freedom Flotilla, despite finding that the attack constituted a war crime.

Our lawyers filed an appeal to this decision. In several rulings since 2014, the Court has found that the Prosecutor’s decision contained errors and ordered her to reconsider her decision giving her a deadline of 15 May 2019 to make a final decision on opening an investigation. The Prosecutor then appealed against this decision.  We were recently informed by the ICC that the Appeals Chamber would hold an oral hearing on 1 May 2019. The Appeals Chamber set out specific questions it seeks answers to concerning the Prosecutor’s appeal.

Ann Wright, spokesperson for US Boats to Gaza (a partner of the FFC) said: ‘We pay our respect and send our love to all of the families who continue to demand justice for those murdered on 31 May 2010. ‘Their “crime” was to use their bodies to challenge an illegal blockade and for that they were extrajudicially killed while sailing under the flag of the Union of Comoros, in international waters’.

Ann Wright of US Boats to Gaza continued: ‘Thanks also to our 12 national partners and the law firm of Stokes and White for its steadfast assistance in seeking justice for the ten people killed and the fifty wounded by Israeli forces and those beaten up and terrorized by the IOF on the other five ships of the flotilla. We hope that justice will prevail and the perpetrators of these war crimes are brought to account without further delay.’

For more information including interviews, contact:

Ann Wright: +1 808 741 1141
David Heap: +1 519 859 3579

Further background information:

The short film that we made available at https://youtu.be/GV4FHEmTaio provides a visual documentary of what happened on 31 May, 2010. A further multi-award winning film, ’The Truth Lost at Sea’ is accessible here https://truthlostatsea.com/

The FFC has continued to sail boats to attempt to break the illegal Israeli blockade of Gaza and bring international attention to the suffering of the more than two million people of Gaza from the illegal Israeli land, air and sea blockade of Gaza.  Boats have sailed to Gaza in 2011, 2012, 2015, 2016 and 2018.  The next boats will sail in 2020.

Web: https://jfp.freedomflotilla.org/
Twitter: @gazafflotilla
Facebook: FreedomFlotillaCoalition

July 2018 Letter To CHRYSTIA FREELAND, Minister Of Foreign Affairs of Canada

Letter to Chrystia Freeland, Minister of Foreign Affairs

 

Chrystia Freeland,

Minister of Foreign Affairs

Dear Ms. Freeland,

Re: Safe and unhindered passage for the 2018 International Freedom Flotilla to Gaza

The 2018 international Freedom Flotilla departed Sicily earlier this week and is now heading across the Mediterranean Sea towards Gaza and is due to arrive within the next several days.

On board are two Canadian citizens: John Turnbull, and Larry Commodore of the Sto:lo Nation, Canada who have bravely joined a number of other prominent human rights advocates from around the world to challenge the illegal blockade of Gaza.

The flotilla also carries approximately 13,000 Euros worth of urgently needed medical supplies (including gauze) to be gifted to Gaza’s over-stretched health services. The boats will be gifted to Gaza’s fishers, who are in desperate need of support in order to feed their families.

Like our many previous missions, this flotilla poses no threat whatsoever to the Israeli Government. However, in light of Israel’s unlawful attacks on, and seizure of previous Gaza-bound civilian boats in international waters, we once again call on the Canadian Government to urgently demand the Israeli authorities end their inhumane and illegal blockade of the Palestinian people of Gaza and allow the 2018 Freedom Flotilla safe and unhindered passage to their destination – the port of Gaza.

We look forward to your prompt response.

Sincerely,

Canada Boat to Gaza Steering Committee

 

July 2018 Letter to U.S. Secretary of State Pompeo Concerning the 2018 Gaza Freedom Flotilla

https://www.opednews.com/articles/Letter-from-the-Gaza-Freed-by-Ann-Wright-Freedom-Flotilla_Gaza-Freedom-Flotilla_Israel_Letters-180728-584.html

July 26, 2018

Secretary of State Mike Pompeo
US Department of State
Washington, DC

The 2018 Gaza Freedom Flotilla after a 70-day trip from Scandinavia stopping in ports in Norway, Sweden, Denmark, Germany, the United Kingdom, France, Spain and Italy, departed Sicily and is now heading across the Mediterranean to Gaza to challenge the illegal Israeli blockade of Gaza.

The representative of the United States, U.S. Navy survivor of the 1967 Israeli attack on the USS Liberty ship, Joe Meadors, is on board the ship Al Awda with a number of other prominent human rights advocates from around the world.

The flotilla carries 116 boxes of urgently needed medical supplies, primarily sterile gauze and sutures, to be gifted to Gaza’s over-stretched health services due to the execution of 140 Palestinians in Gaza and severe injury to over 16,000 Palestinians by the Israeli Occupation Forces in the past two months during the Friday Great Return Marches.

The three boats of the flotilla will be gifted to Gaza’s fishers who are now having to fish within three miles of the shore due to Israel’s lethal enforcement of a Israeli declared fishing zone in Gaza waters. One boat is a fishing trawler and two are sailboats.

Like previous similar humanitarian missions, this flotilla with unarmed, civilian human rights activists poses no threat to Israel. Israel’s own actions toward Palestinians is what causes Israel to feel threatened.

However, in light of Israel’s unwarranted and illegal interception and seizure of previous Gaza-bound civilian boats in international waters, with this open letter, we call on the Government of the United States to urgently demand that Israeli authorities end their inhumane blockade of the Gaza Strip and allow the 2018 Gaza Freedom Flotilla safe and unhindered passage to their destination — the port of Gaza City.

We look forward to your prompt response.

Ann Wright
Retired US Army Reserve Colonel, and
Former US diplomat who resigned in March 2003
In opposition to the war on Iraq

Rumbo A Gaza Meets Spanish Ministry of Foreign Affairs and Palestine Inter-Parliamentary Group

RUMBO A GAZA MEETS SPANISH MINISTRY OF FOREIGN AFFAIRS AND PALESTINE INTER-PARLIAMENTARY GROUP

Over the last few weeks the Spanish campaign Rumbo a Gaza has meetings with officials at their Ministry of Foreign Affairs and international cooperation and with members of parliament who represent their parties in the inter-parliamentary group for Palestine.

On October 1st we had met the general director for North Africa, Mediterranean and Middle East department of the MFA, Eva Felicia Martínez Sánchez; Álvaro Ortega Barón, deputy director for Middle East and Alejandro Fernández-Mazarambroz, manager of consular affairs; they had a chance to hear the description of the attack on the Freedom Flotilla boat Al Awda (The Return) in international waters, close to the coast of Gaza, directly from Lucía Mazarrasa, Rumbo a Gaza representative who was on the boat. She ended up being hijacked along with the rest of the activist and crew aboard and they were all taken against their will to the port of Ashdod by the Israeli navy, put in prison and then expelled.

Rumbo a Gaza asked the Spanish Ministry of Foreign Affairs, in the name of the Freedom Flotilla Coalition, to demand that Israel return the items stolen after the attack on its boats in international waters:

– Personal items of the crew and activists on board the boats Al Awda (Norwegian flag) and Freedom (Swedish flag)

– The 114 boxes of medical supplies worth 13,000 € for Gaza hospitals, which are yet to be delivered to its destination

– and the boats themselves

We have also asked that the value of those items be included in the demand of the state of Israel for destruction of installations in Gaza financed by Spanish aid organizations.

Given that the Freedom Flotilla Coalition will continue sailing as a protest against the blockade on the Gaza Strip, while this collective punishment on its population goes on, we request that protection be granted against hijacking of civilians, among them Spanish citizens, in international waters.

Moreover, given the illegality of the blockade, we insist that measures must be taken, including legal ones, to defend the right of the Palestinian population of Gaza to freedom of movement.

Several other issues were brought up during the meeting, including the recognition of Palestine as a state, the prohibition by the Spanish state of trade with the illegal Israeli settlements in the Occupied Palestinian Territories, the request that Spain will encourage other European Union countries to demand the lifting of the blockade on the Gaza Strip and not to renew the preferential trade agreements with Israel, while the blockade and the occupation continue and Israel does not respect human rights.

We acknowledged the attention given by the consular services to the Spanish activists on the boats: Lucía Mazarrasa, Francisco Canales and Emilia Nacher, as well as to Zohar Chamberlain an Israeli citizen resident in Spain, and to their families before and after the attack, and thanked them for their work.

Two weeks later, Rumbo a Gaza met with members of parliament who form the inter-parliamentary group for Palestine in the congress. Among them were Soraya Rodríguez, from the socialist party PSOE, Ricardo Sixto from the United Left party IU, Enric Bataller from Compromís, Rosana Pastor from Podemos. Other MPs from Unidos Podemos and Compromís also took part in the meeting.

In this meeting we presented a document listing various petitions and claims: the theft of goods by Israel, the need to recognize the Palestinian state, the prohibition of commerce between Spain and the illegal Israeli settlements and the breaking of military ties with Israel. The MPs with Soraya Rodríguez as the representative of the ruling party listened to our presentation with interest and proposed the possibility of organizing a conference in support of Palestine at the congress during the first half of December. The issue of human rights will be the focus of the conference and different groups involved in pro-Palestinian activism will be invited.

Lucía Mazarrasa, Rumbo a Gaza’s representative on the boat Al Awda of the Freedom Flotilla, explains to members of the inter-parliamentary group for Palestine of the Congress the violent attack by the Israeli navy in international waters close to the coast of Gaza, on July 29 as it was on its way to break the illegal blockade.

This parliamentary question was presented on August 1st:

TO THE CONGRESS BOARD

The members of Parliament Antón Gómez-Reino Varela, Pablo Bustinduy Amador, Miguel Anxo Fernández Bello, Sergio Pascual Peña, Ricardo Sixto Iglesias, Eva García Sempere, Sonia Farré Fidalgo, Rosa Ana Alonso Clusa y Rosana Pastor Muñoz, belonging to the Confederal Parliamentary Group of Unidos Podemos-En Comú Podem-En Marea, under the protection of the content of Article 185 of the Rules of the House, submit the following questions requesting a written reply in connection with the situation in Palestine.

STATEMENT OF REASONS

As the blockade by Israel on Gaza, a collective punishment strictly forbidden by international law, goes into its twelfth year, the situation has become dramatic and is affecting all aspects of daily life, from economy (65% women unemployment rate and 35% men unemployment rate) to agriculture and fishing very especially, but also health, education, freedom of movement, access to electricity and drinkable water, increase in food insecurity suffered by 70% of the population, increase of the gender inequality gap and the impossibility of reconstruction after the three devastating bombing attacks in 2009, 2012 and 2014 that according to the UN could make Gaza an uninhabitable area by 2020.

The situation in Gaza cannot be separated from the consequences of the Israeli occupation in 1967 of East Jerusalem, the West Bank and the Gaza Strip itself, which was declared illegal by resolution 242 of the UN, which 51 years later has evolved into an absence of political solutions to create a viable and independent Palestinian estate; a very serious situation of apartheid, segregation and daily violations of human rights; destruction of homes and infrastructure, arrests and imprisonments, particularly of girls and boys in clear infringement of the Convention of Children’s Rights; violence and deaths.

Because of all of this we ask the

FOLLOWING QUESTIONS DEMANDING A WRITTEN RESPONSE

  1. What measures is the Spanish Government planning to take in order to contribute to the peace in the Middle East, with special reference to the occupation and colonization of Palestine, the situation of refugees, the blockade on Gaza, the violation of human rights by Israel, and obstracles to freedom of movement and transport in the area?
  2. What measures in particular, of those stated in international and Spanish law, is the Spanish government planning to take in order to respect and make others respect the traditional Spanish and UN position about Palestine and Israel regarding the suspension of the sale of arms and military exchange before the assassination of peaceful marchers in Gaza, against the increasing colonization of Palestinian land, for an end to the blockade, an end to trade with Israeli settlements, for the right to a Palestinian state of their own and against apartheid, which lately has been constitutionalized in the so-called law of the Jewish Nation-State?
  3. What measures is the government planning to adopt regarding the boarding of ships on humanitarian missions like the one of the Ship to Gaza Flotilla? What actions has the Spanish Government taken against the Government of Israel concerning these facts?
  4. Does the government intend to declare itself to be in favour of the right to free navigation in international waters, the freedom of movement of people and goods to and from Gaza, demanding that special attention be paid to the lives and integrity of flotilla participants?
  5. What consular protection has been dispensed to the three Spaniards, Lucía Mazarrosa, Emilia Nacher and Francisco Canales travelling in the flotilla who, together with Zohar Chamberlain Regev, an Israeli citizen resident in Spain, representatives of Ship to Gaza in the international flotilla?

And here is the written response by the Spanish government:

GOVERNMENT’S REPLY

(184) WRITTEN QUESTION CONGRESS

AUTHOR/ESS: BUSTINDUY AMADOR, Pablo (GCUP-ECP-EM); FERNÁNDEZ BELLO, Miguel Anxo Elías (GCUP-ECP-EM); FARRÉ FIDALGO, SOnia (GCUP-ECP-EM); GARCÍA SEMPERE, Eva (GCUP-ECP-EM); PASTOR MUÑOZ, Rosana (GCUP-ECP-EM); PASCUAL PEÑA, Sergio (GCUP-ECP-EM); SIXTO IGLESIAS, Ricardo (GCUP-ECP-EM); ALONSO CLUSA, Rosa Ana (GCUP-ECP-EM); GÓMEZ-REINO VARELA, Antonio (GCUP-ECP-EM)

REPLY:

Regarding the matter in question we inform that Spain keeps a constant interlocution with the parties at the highest level, as it became clear with the successive visits of the Presidents of Israel and Palestine-UNOS (observer state of the UN) last November, which allows us to put forward in a direct way the Spanish position about the Israeli-Palestinian conflict, and which is well-known, permanent and in line with the frame of the different UN resolutions.

It is a firm position in favour of a solution of two states, Israel and Palestine UNOS, living together in peace and security within internationally recognized frontiers, and with Jerusalem as a capital shared by both states. This position is reflected in the vote of Spain in the international organizations where the question is dealt with.

Spain considers that the Israeli settlements in the occupied territories are illegal according to international Law, as resolution 2334 of the UN Security Council reminds us, in favour of which Spain voted as a non-permanent member on 23rd December 2016.

Spain, like the European Union (EU) and its member-states, draws “a distinction, in its relevant relationships, between the territory of the State of Israel and the occupied territories since 1967” as it happens in particular in the field of commercial policy, common policy of the UN run by the European Commission. Indeed, this commerce does not enter within the scope of the Agreement of Association UN-Israel, and the Commission published an explanatory note in 2015 intended to solve the doubts about trade legislation applicable to the products of the areas occupied by Israel since 1967.

As for Gaza, the Spanish Government is very seriously concerned about the humanitarian situation in the Strip. In order to change it for the better, Spain is in favour of the lifting of the blockade and the end of the restrictions imposed on the Strip, preserving the appropriate guarantees for the legitimate security of their neighbours. This appeal is contained in the different conclusions of the Council of Foreign Affairs of the UN and in the resolutions of the United Nations. Thus, last 13th June, the General Assembly adopted a resolution about the protection of the Palestinian civil population which Spain voted to support.

Likewise, Spain follows closely the situation and development of Human Rights in Israel and in the Occupied Palestinian Territories, consistent with our values, principles and international commitments. Spain makes good use of the tools that we have at our disposal in order to monitor this process both through our bilateral relationships and through the European Union and the multilateral mechanisms for the protection of human rights, in particular of the United Nations.

In each and every session of the Council of Human Rights, Spain refers to the Human Rights situation in the Occupied Palestinian Territories, in its national speech on the occasion of the general debate about the different situations of human rights which require the attention of the Council.

As for the violent incidents in Gaza, Spain voted in favour of the establishment of an international investigation in the special session of the Council of Human Rights convened on the 18th May with the Spanish support. Likewise, on the 13th June Spain voted in favour of the resolution approved by the General Assembly which calls upon the Secretary General of the United Nations to study mechanisms to protect the civil Palestinian population.

In connection with the boarding of ships on their way to Gaza last 24th July, the Office of Diplomatic Information informed about the steps taken with preventive character by the Ministry of Foreign Affairs, European Union and Cooperation before the Israeli authorities, both in Madrid and in Israel, in order to publicly reiterate the Spanish position against the blockade of Gaza, as well as the defence of the principle of free navigation. Likewise, an appeal was made to the Israeli authorities for a maximum restraint on their part in any kind of actuation.

As the Ministry had the opportunity to transmit to the persons concerned, the consular recommendation was crystal clear in advising any Spanish citizen against trying to access Gaza by sea in view of the risks involved.

The attention and monitoring of the events on the side of the Ministry of Foreign Affairs and Cooperation, the Embassy in Tel Aviv and the General Consulate in Jerusalem was total and permanent, including the timely and constant consular protection towards the citizens affected by the deportation order. The consular protection was exercised first in a preventive way, assuring optimal coordination among the different actors, and later in an effective way, watching over the welfare of the Spanish detainees and informing their families and those closest to them about their situation.

Before the arrival of the flotilla ships, members of the Spanish Embassy in Israel met with representatives of the Israeli Ministry of Foreign Affairs in order to reiterate the need of assuring the security of the crew members in an eventual assault to the ships, avoiding the unnecessary use of force. Similarly, before and after the assault, the Ministry of Foreign Affairs and Cooperation kept in permanent touch with the Spanish organizers of the flotilla, and the Spanish Embassy in Israel with the embassies of the countries of the other participants and with the Israeli diplomatic, migratory and penitentiary authorities.

Once the ships had been boarded (Al Awda on the 29thJuly and Freedom on the 3rd August), the crew members and passengers were taken to the port of Ashdod and, after being checked by the military authorities, they were put at the disposal of the Israeli migratory authorities and sent to a detention centre for foreigners near the airport. The Israeli citizens were set free. During the process the Spanish Embassy was in touch with the liaison personnel of the Israeli Ministry of Foreign Affairs, who assured that the two Spanish women in the first ship and the two Spanish men in the second were fine.

On 30th July the Spanish consul went to visit Mrs. Lucía Mazarrasa and Mrs. Emilia Nacher in the detention centre, and on 5th August to Mr. Francisco Canales and Mr. Ian Agustín Díez Young, a British-Spanish dual citizen, though he was only in possession of British passport. The consul visited Mr. Canales again on the 7th August. In these visits the consul showed his interest in the health and welfare of the Spanish detainees. Likewise, after receiving authorization from the detainees, the consul informed their families of their situation and of the deportation flights in which the three Spaniards returned to Spain and the dual citizen to the United Kingdom.

Between detention and deportation, the Embassy was in touch with the Israeli authorities in order to make sure that the Spaniards were fine and also to avoid unnecessary delays. The deportations took place on August 1st (Mrs. Mazarrasa), August 2nd (Mrs. Nacher), August 5th (Mr. Díez Young) and August 8th (Mr. Canales).

Finally, the Spanish Embassy in Israel is taking steps to recover those personal objects belonging to the Spanish citizens which have not yet been returned by the Israeli authorities.

Madrid, 15th October 2018

Updates on legal status of 2018 Gaza Freedom Flotilla boats stolen by the Israeli Occupation Forces

2 boats with caption freedom flotilla updates on legal status of boats

 

An Israeli court has ruled that the two ships, the Al Awda and Freedom, who both sailed this summer and were captured by the Israeli Navy, cannot be sold to compensate families of ‘terrorism’ victims. This decision overturns a ruling made by the Jerusalem District Court and ensures that the hearing will proceed in the Haifa Maritime court, applying Maritime law. We are hopeful that international law will be upheld. The Freedom Flotilla Coalition maintains that Israel must accept our demand that both ships be given as a gift to the Union of Agricultural Work Committees (UAWC), a non profit organization representing fishers in Gaza.

The next hearing in this matter will take place on February 5, 2019.

 

The Maritime Court in Haifa Claim in rem 26966-08-18

Claim in rem 26933-08-18

Before His Honour Judge R. Sokol

 

On the matter of:

The State of Israel

Through Prosecutor, Civil District of Haifa

15A Pal Yam Boulevard, Haifa

Tel: 04-8634006, Fax: 04-8634011

– v –  

The ship KARSTEIN

The ship FREEDOM

Through representative Attorney Gaby Lasky and/or Karin Torn Hibler and/or Hayya Abu Warda

From 18 Ben Avigdor St., POB 57092, Tel Aviv-Yafo 61570

Tel: 03-6243215, Fax 03-6244987

 

The Respondent

 

23/11/2018 Decision

File 18-08-26966

The prosecution will reply to the claims regarding the seizure of property and medical supplies by 15/12/2018

 

The Respondent’s reply

 

In accordance with decision of the honourable court from 07/10/18, the representative of the Respondent has the honour of submitting the Respondent’s reply to the application for confiscation. The position of the Respondent is that the application should be dismissed due to delay in its submission, and alternatively essentially due to the illegality of the maritime blockade on Gaza and its being counter to the rules of international and administrative law, due to the lack of grounds for confiscation and the disproportionality of confiscation as a measure.

 

  1. Since the State of Israel imposed a general closure on the Gaza Strip several years ago as part of its war on the Hamas administration, the civilian population of Gaza have been suffering in all areas of their lives from the destructive effects of the closure, and they are subject to abysmal hardship to the point of a real humanitarian crisis, the present dimensions and likely future ramifications of which are difficult to fathom and describe.

 

  1. In recent years there has been a tangible deterioration in the condition of the civilian population in Gaza, the electricity shortage has reached new levels, which have nearly paralyzed the health services, the cumulative results of the economic crisis that arises from the restrictions on commerce as well as the import and export of merchandise from Gaza and to it have produced new heights of grievous poverty and hunger.

 

  1. These base conditions of life and the daily routine of struggle for survival have brought the residents of the Strip to a condition of grave frustration and the desire to make their appeal against the hunger and the poverty in which they are living heard worldwide. In consequence of this, we have been seeing, over the past half year, starting in the month of March, the holding of demonstrations at the Gaza Strip fence, calling for the lifting of the illegal siege on Gaza and to permit the residents of the Strip to sustain their lives. The fact that there are those who are negatively exploiting the hardship of the residents by carrying out attacks and endangering the lives of Israeli residents by throwing Molotov cocktails and trying to damage the fence should not be taken lightly, and at the same time, so far 205 Gaza residents have been killed by gunfire of the security forces.

 

  1. Moreover, it is important to point out that only last Thursday, 8.11.18, the government of Israel transferred 15 million dollars from Qatar to employees of the Hamas administration in the Strip.

 

  1. In order to raise a clear voice against the outrageous injustice that the policy of the blockade visits on the innocent residents of the Strip, several women human-rights activists set sail on board small vessels in a non-violent symbolic protest flotilla, in the hope that their protest would stimulate public discussion within the international community and bring about a change in the desperate situation in which the residents of the Strip have been living for so long. For that protest action the State now wants to order the confiscation of the Respondent.

 

  1. It will be emphasized that when the boats were seized by the navy, the vessels were carrying humanitarian supplies composed of 116 crates of medical supplies that were intended to be transferred to Gaza. Those supplies were seized when the boats were seized, despite the commitment made by the State at the time of the proceedings regarding the ship Marianne to transfer to their destinations by land all humanitarian aid that was seized on the boats.

 

  1. On 31.07.18, about two days after the seizure of Respondent 1, the first application was submitted by the Respondent to the District Coordination and Liaison for the Gaza Strip, but it was received without any reply from the DCL.

A copy of the first application of 31.07.18 is attached, and marked as Appendix 1

 

  1. In view of the fact that no reply was received, that same application was submitted a second time on 08.08.18. In reply we were told by the Public Inquiries Officer of the Gaza DCL that the application had been received at their office, but no reply beyond that has been received and the Respondent’s application remains unprocessed.  

A copy of the second correspondence is attached, and marked as Appendix 2

 

  1. On 12.09.18 an additional application was submitted to the Legal Advisor of the Defence Ministry with a copy to the Land Crossings Authority, in which we requested information on the status of our requests for the transfer of the medical supplies that had been seized on the boat to Gaza, but we have received no reply at all to this request either.

A copy of the third application, from 12.09.18 is attached, and marked as Appendix 3

 

  1. At the same time, negotiations were conducted between the representative for the Respondents and the Applicant on the need for the return of the supplies that were seized from two Israeli activists who were present on the boats when they were seized, Mr. Yonatan Shapira and Ms Zohar Regev. From the outset it was clear to the representative of the Respondents that there was no reason not to return to the activists their possessions. On the same day Mr. Shapira presented himself at the entrance to the Ashdod base, but to his surprise he was forced to wait for hours, while none of those present on the premises, not even the Military Prosecutor’s liaison officer, replied to his request and he was forced to go back without his belongings being given back to him. As of the writing of these lines the seized items have still not been returned to their owners.

A copy of the correspondence with the representative of the Applicant, of 28.08.18, is attached, and marked as Appendix 4

 

  1. The proceedings in question do not raise the question of whether it is permitted for Israel to defend the peace of its citizens and its sovereignty, indeed there is no disagreement that that question must be answered in the affirmative. The questions that the that the proceedings raise are whether the prolonged closure of the Strip is proportional and legal and if legitimate political protest against it constitutes a threat that requires the seizure of the boat and justifies its confiscation.

 

Delay:

 

  1. In in rem 26861-08-13 State of Israel v the ship Estelle, the honourable court ruled that when the State seizes a vessel as booty, international law imposes on it a duty to apply immediately to a court for instructions on how to dispose of the vessel and to rule on the legality of its seizure. The honourable court emphasized in its ruling that this was not a mere technical duty, but an essential duty the purpose of which is to ensure the correctness of the procedure and the procedural and essential rights of the parties liable to be harmed by it. Therefore it was decided that the violation of the said duty could justify the dismissal of the application. In the State’s appeal of the said ruling, Civil Appeal 7307/14, the Supreme Court ratified the clear rule that had been established.

 

  1. However, despite these unequivocal decisions, and despite the fact that Respondent 1 was already seized on 29.07.18 and Respondent 2 was seized on 03.08.18, the Applicant refrained for over a week from seeking instructions from the court. Only on 13.08.18 was a declaration submitted by the Applicant of its intention to submit an application for confiscation, and the present proceedings only on 22.08.18, without any explanation for the delay in applying to the court.

 

  1. Under these circumstances, the violation of the duty of immediate recourse to the court, in violation of the law and the established ruling is grave and in itself justifies the dismissal of the application.

 

The illegality of the blockade

 

  1. The Respondent will argue that the declaration of the maritime blockade on the Gaza Strip is illegal due to the fact that in the announcement to mariners of 06.01.09 it was indicated that the blockade would be imposed “until further notice”, despite the fact that international law requires that the declaration indicate in detail the period of time in which the blockade will be in effect (See Art. 94 of the San Remo Manual).

 

  1. Even though it is a formal requirement, it is based on an essential rationale, which is the setting of a defined period of time for the conduct of periodic and systematic examination of the necessity and effectiveness of the blockade, in order to ensure control over what is done, and an examination from time to time of the justification for this extreme measure. There is no disagreement that the imposition of a maritime blockade on a territory that has a civilian population causes substantial harm to the rights of civilians, hence it is of supreme importance that it be limited in time and that it be re-examined prior to its renewal.

 

  1. Accordingly, to the extent that it is determined that the declaration was in force and legal at the beginning of the year 2009 and also in the subsequent period, that does not establish the legality of the blockade after the passage of nearly eight and a half years from the date of its declaration.

 

  1. International and humanitarian law and international human-rights law impose on Israel essential duties towards the civilian population in the Gaza Strip. The imposition of the blockade and its enforcement rise to the level of a violation of Israel’s duties under international law and also constitute forbidden collective punishment.

 

  1. The maritime blockade and the actions to enforce it must hold to the principle of proportionality, which is a central principle both in international law and Israeli administrative law. Thus does Art. 102 (b) of the San Remo Manual stipulate that a declaration of a blockade or its enforcement are forbidden where the harm caused to the civilian population is disproportionate in relation to the concrete and direct military advantage that is expected to accrue from the blockade. The Respondent will argue that on the date of the seizure the enforcement of the blockade did not meet the requirement of proportionality, for the gravity of the harm done to the civilian population in the Gaza Strip immeasurably exceeded the military advantage.  

 

Lack of justification for confiscation, and its disproportionality

 

  1. The Respondent will argue that in any case, the action for which the confiscation of the Respondent is requested does not constitute a violation of the blockade, nor should it be seen as an attempt at its violation, but as a legal and legitimate act of protest which from the outset did not justify the seizure of the boat, much less a justification for its confiscation, such that the actions of the State constitute a case of ultra vires.

 

  1. The Respondent will further argue that the action of seizure and confiscation do not serve any reasonable purpose, they are clearly disproportional and unreasonable in view of the harm they cause to fundamental rights and protected interests, both under customary international law and under the constitutional and administrative law of the State of Israel, such that the State’s application should be dismissed in any case.

 

  1. It is clear that to the extent that whereas there was no authority to seize, there are no grounds for the confiscation of the Respondent. But even if it is determined that the seizure of the Respondent was carried out legally, that in itself does not lead to its confiscation. For that purpose a separate and independent rationale and essential justification are required. An application for confiscation, like all actions of the Applicant, must be examined not only in light of the rules of international law as the Applicant tries to argue, but also on the basis of standards and grounds for audit under Israeli administrative law.

 

  1. According to the Applicant, there is no need to prove that the action of confiscation is necessary for any purpose, and given the existence of the necessary previous conditions for the seizure of a vessel, the court must order its confiscation. However, that is not in fact the case. The court is not a rubberstamp that is restricted to giving a legal seal of approval to the actions of the Applicant, unless under the circumstances at hand there exists fundamental justification for the confiscation of the vessel. The words of the learned Robert Tucker are fitting in on this matter:

 

At the same time, seizure need not lead to the condemnation of the vessel or of her cargo. The lawfulness of the act of seizure is not dependent up on later condemnation by a prize court. It may well be that the circumstances held to justify seizure will not be regarded by a prize court as sufficient to justify condemnation

 

The determination of title remains the sole responsibility of the prize court, which is charged with the task of investigating the circumstances attending seizure and deciding whether there is sufficient cause for confiscating vessel or cargo – or both.” (The Law of War and Neutralitiy at Sea, Robert W. Tucker 1955, (346-348) (Emphasis added – G.L.)

 

  1. The rights of the owners of the Respondent to the boat are property rights protected by the Basic Law: Human Dignity and Liberty. As is known, those constitutional rights cannot be transgressed except by law or according to law, for a reasonable purpose and to the extent that that it does not exceed necessity. The Respondent will argue that the confiscation of the Respondent does not meet those conditions and that it is an arbitrary act that does not serve any purpose, much less any purpose that is reasonable as required.

 

  1. The confiscation of the Respondent was carried out in response to symbolic and non-violent protest against the policy of blockade of the Gaza Strip. On board the Respondent were a small number of peace activists who declaredly embrace absolute non-violence. The only objective of the activists was to express legitimate criticism against the policy of blockade. At no point did any of them present any danger to the security of the State of Israel, they did not resist the security forces’ capture of the boat and they undertook no violent action.

 

  1. In addition, there were no weapons or dangerous or forbidden materials whatsoever on board the Respondent, nor has the Applicant claimed otherwise.

 

  1. On the contrary, not only was the seizure of the Respondent not necessary for the realization of the security objective that was the basis of the imposition of the blockade, but the Applicant’s attempt to apply the laws of armed conflict at sea to a clear act of non-violence and symbolic protest that did not take place during a time of combat is out of place and undermines the objectives that those laws were intended to promote.

 

  1. There is no doubt that it was possible from the outset to suffice with inspecting the cargo that was on board the Respondent and immediately to free it upon completion of the inspection. Therefore there is no doubt that the confiscation of the Respondent constitutes an extreme measure that disproportionately violates the constitutional rights of the owners of the Respondent in disregard of appropriate balance between the relevant interests and moreover is extremely unreasonable.

 

  1. In view of all the above, the honourable court is asked to dismiss the Applicant’s application and to order the release of the Respondent.

 

  1. Moreover, the honourable court is asked to require the Applicant to pay the expenses of the Respondent and the lawyers’ fees along with the Value Added Tax as required by law.

 

[Signature]

Gaby Lasky

Representative of the Respondent

 

*** *** ***

Appendix 1

Gaby Lasky & Partners, Law Offices

18 Ben Avigdor St., P.O. Box 57092, Tel-Aviv-Jaffa, 61570

Fax: 03-6244387, Tel: 03-6243215

E-mail: laskylaw@yahoo.com

Gaby Lasky, Adv.

Karin Torn Hibler, Adv.

Haya Abu Warda, Adv.

31.07.2018

To the Coordination and Liaison Administration in the Gaza Strip

E-mail: kapatz@cogatmtkgaza.gov.il

Greetings,

The subject: Application to bring medical supplies on the boat “Awda” to the port of Gaza

The below-signed represents the ship “Awda” as well as part of the team of organizers of the flotilla.

Following the seizure of the ship “Awda” which was brought to the port of Ashdod by the navy on 29.07.2018, I hereby inform you that the boat is carrying humanitarian supplies composed of 116 crates of medical supplies.

These supplies have been brought as humanitarian aid for the healthcare system in the Gaza Strip, according to the attached list.

Accordingly, we request that these humanitarian supplies that were brought on the boat be transferred to their declared destination in the port of Gaza.

Moreover, it is known to us that some of the personal effects of the participants in the flotilla have not yet been returned to them. We will be grateful if instructions will be published for the return of those seized effects, in order to prevent a situation in which the personal effects of the flotilla participants be lost as has happened in previous cases.

Respectfully,

[Signature]

Gaby Lasky, Advocate

 

*** *** ***

Appendix 2

Haya Abu Warda haya@lasky-law.com

To: Kapatz@cogatmtkgaza.gov.il

Attached again is a request for the transfer of humanitarian and medical supplies on the “Awda” flotilla.

Regards,

Haya Abu Warda, Adv.

(2 electronic attachments: “Final Inventory of Medical Supplies on Boats to Gaza” and בקשה להעברת ציוד  הומניטרי 310718 [translation of 2nd file name : Request for transfer of humanitarian supplies 310718])

 

*** *** ***

Request for transfer of humanitarian supplies on the boat “Awda” to the port of Gaza

8 August 2018, 15:21 hours

Coordination and Liaison Administration Gaza/Office/Public Inquiries Officer/Roni Vaknin kapatz@cogatmtkgaza.gov.il

To Haya Abu Warda haya@lasky-law.com

Greetings,

Contact details:

Telephone: 08-6741469

E-mail: Kapatz@cogatmtkgaza.gov.il

Call centre hours:

Sunday: 10:00-12:00 13:00-15:00

Monday-Wednesday: 09:00-12:00 13:00-15:00

Thursday: 09:00-12:00

Greetings,

 

Roni Vaknin

Public Inquiries Officer

Coordination and Liaison Administration Gaza

[Quoted text concealed]

 

*** *** ***

 

Appendix 3

 

Gaby Lasky Law Offices

12.09.2018

To the Legal Advisor for the Ministry of Defence

Ministry of Defence, Hakirya

Tel Aviv 61909

Fax: 03-6976746

Greetings,

The subject: Follow-up on the transfer of medical supplies from the boats “FREEDOM” and “Awda” to the Gaza Strip

  1. The below-signed represents the boats “FREEDOM” and “Awda” (below: the vessels) as well as part of the staff of the flotilla.
  2. On 29.07.18 the boat “Awda” was seized by the navy and taken to the port of Ashdod.
  3. On 03.08.18 the boat “FREEDOM” was seized by the navy and taken to the port of Ashdod.
  4. On 26.08.18 the State of Israel, through the Haifa District Prosecutor, submitted an application for an order for confiscation of the two vessels.
  5. I hereby inform you that the two vessels were carrying humanitarian supplies composed of 116 crates of medical supplies.

A detailed list of humanitarian supplies per vessel is attached as Appendix A

 

  1. We note that the State itself agreed, in previous proceedings at the Maritime Court in Haifa, that humanitarian supplies that were seized on boats on their way to Gaza would be transferred to their destination by land (In rem 7961-07-15 State of Israel v the ship Mariane).
  2. In order to facilitate following up on the transfer of the supplies to their destination, we request to receive a detailed list regarding the supplies that have been transferred to the Gaza Strip, the date of their transfer and the parties to whom the supplies were transferred.
  3. Insofar as as the State decides not to transfer part of the supplies, I would request to receive a detailing in that regard as well.
  4. Since much time has passed since the vessels were seized, I would be grateful to receive the report promptly.

[Signature]

Regards,

Gaby Lasky, Adv.

Copy:

The Land Crossings Authority

Fax: 03-9381053

 

*** *** ***

 

Appendix 4

Query regarding the return of property from the Ashdod base

28 August 2018, 17:23 hours.

Haya Abu Warda haya@lasky-law.com

To: hadarm@justice.gov.il

Copy: Gaby Lasky laskylaw@yahoo.com

Greetings Hadar,

Further to your correspondence with Gaby, I would request to receive an update on the return of the seized property of Zohar Regev and Yonatan Shapira. The items seized from Zohar Regev:

A black bag, cash in the amount of NIS 50 and foreign currency, reading glasses, keys, an Israeli driving licence, a cloth bag containing a fiction book, a backpack, washing supplies, a fiction book, a head light, and clothes.

The items seized from Yonatan Shapira:

A small pink backpack, a large black backpack, a black wallet, money in euros and shekels, two credit cards, a driver’s licence, a boat licence, additional cards and documents, a harmonica, flashlights, a small bag with medicines and washing supplies, clothes, two jackets, a storm suit, a book, a personal notebook, two pairs of sunglasses, a sleeping-bag.

Thanking you in advance,

Haya

 

*** *** ***

 

Haya Abu Warda haya@lasky-law.com

To: Amnon Brownfield Stein amnon@lasky-law.com

3 September 2018, 13:19 hours

 

Haya Abu Warda, Adv.

Message that was transmitted

From: Haya Abu Warda haya@lastky-law.com

Date 28 August 2018, 17:23 hours

Subject: Query regarding the return of possessions from the Ashdod base

To hadarm@justice.gov.il

Copy: Gaby Lasky laskylaw@yahoo.com

[Quoted text concealed]