The International Criminal Court prosecutor is again giving Israel a pass for its deadly raid on a flotilla to Gaza a decade ago.
Israeli soldiers fatally wounded 10 people aboard the Mavi Marmara after raiding the ship, which was part of a civilian flotilla.
On Monday, Fatou Bensouda declared she is standing by her 2015 decision not to open an investigation into the attack – despite the court’s judges telling her twice to reconsider.
In September, ICC appeals judges called Bensouda “disrespectful” and said she had treated an earlier order to reconsider the case in a “perfunctory manner.”
They again told her to go back and reach a new decision – the one issued on Monday.
Her new decision is effectively that Israel should continue to benefit from the very impunity that the ICC is supposed to end.
Bensouda acknowledges that “there is a reasonable basis to believe that war crimes were committed by members of the Israel Defence Forces” when they boarded the Mavi Marmara.
But she insists that the Israeli attack on the high seas is not “sufficiently grave” to warrant prosecution.
In the early hours of 31 May 2010, Israeli commandos boarded and seized the boats in international waters in the Eastern Mediterranean.
At least 20 others were seriously injured aboard the Mavi Marmara.
On Thursday, lawyers for the victims accused the prosecutor of bias and vowed to appeal.
“With the decision, the intent is to safeguard Israel – so blatantly and flagrantly right under the international community’s nose – against any indictments of war crimes,” the lawyers state.
“Since the prosecutor of the ICC cannot cover up these crimes in any way, she hides behind procedural excuses.”
Indeed, Bensouda’s Monday decision is accompanied by a 44-page document setting out numerous procedural excuses for why she can’t pursue a case.
It reads more like a brief from a defense attorney for Israel rather than from a prosecutor seeking to end impunity for international crimes.
At points she appears to blame the victims, claiming that “persons alleged to have been wilfully killed and wilfully injured were victimized in circumstances that were at least proximate to the passengers’ violent resistance to the boarding of the Mavi Marmara by the IDF [Israeli army].”
She even suggests that heavily armed Israeli soldiers carrying out an unprovoked raid on a civilian ship in international waters might have been acting in “self-defense” – talking points that could well have come straight from the Israeli government.
One of the arguments Bensouda makes for doing nothing is that the number of victims of the Israeli attack was “relatively small compared to potential cases arising from other situations.”
ICC judges have previously pointed out that the court has pursued cases with even fewer victims – such as against Bahar Idriss Abu Garda and Abdallah Banda, both accused of war crimes against African Union peacekeepers in Sudan’s Darfur region.
Judges found that those prosecutions were justified because although the alleged crimes had few direct victims, they disrupted humanitarian relief and peacekeeping operations benefitting millions of civilians.
Exactly the same reasoning would apply to the flotilla, which was on its way to Gaza to break a blockade that deprives millions of Palestinians of basic humanitarian and human rights.
Israel’s attack on the flotilla was evidently intended to send a message to the world that no one should try to break the illegal blockade of Gaza or provide any solidarity to people there.
The International Committee of the Red Cross, among others, considers the blockade to be collective punishment, a grave violation of the Geneva Conventions.
But Bensouda claims that the effect of Israel’s message “cannot be assessed with any degree of reliability.” She says therefore that she gave “minimum weight” to arguments about how Israel’s goal is to ensure that no one dares break the blockade on two million people, half of whom are children.
The prosecutor’s latest decision in the flotilla case bodes ill for Palestinians hoping the ICC will deliver long-denied justice.
The prosecutor has since 2015 been conducting a preliminary examination into alleged war crimes in the occupied West Bank and Gaza Strip, but has yet to open any formal investigations that could lead to prosecutions.
On Wednesday, Bensouda’s office issued its annual report on its preliminary examinations.
It states that after five years of looking into the situation in Palestine, Bensouda “believes that it is time to take the necessary steps to bring the preliminary examination to a conclusion.”
Whether that conclusion will be another whitewash remains to be seen.