ICC prosecutor acts as Israel’s defense lawyer

Large banner with flags, photos and names of victims

Palestinians in Gaza City hold a rally on 31 May 2017 marking the seventh anniversary of Israel’s attack on a humanitarian flotilla to Gaza. Israeli forces fatally injured 10 people aboard the Mavi Marmara and injured hundreds more.

Ashraf Amra APA images

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.

Israeli forces carried out a particularly violent armed attack on the largest vessel, the Mavi Marmara, killing nine persons. A 10th victim died of his injuries in May 2014.

At least 20 others were seriously injured aboard the Mavi Marmara.

“Procedural excuses”

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.

“Minimum weight”

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.

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Bensouda isn’t defending only Israel, but all the governments and financial elites of the western countries. Israel is their watchdog for the oil.
The ICC is a western court of justice. So as an attorney you want to make a career. In the West. She will be rewarded.

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I have to wonder whether Bensouda would have pressed the case now, if the current incarnation of Uncle Sam wasn't so completely supportive of Israeli impunity; for Israel's sake, as a matter of principle and precedent, and of course for his royal lowness's political gain.
Couldn't she have reasoned there is zero chance of bringing sufficient pressure to bear on Israel, to recognize a ruling's weight, so she's decided not to risk the court's already compromised authority on a losing bet? That's a question.

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Well anyways; I think it's important to understand why people (and organizations) do what they do, in order to address their actions properly. Of course just taking everything at face value is a way to go too and that strategy's prevalence is a big part of what's got us to where we are now. So thanks ya'll.
Hey! lets have some more of that self-satisfying, iconoclastic demonization from the left to go with that good ole' right wing demagoguery. What do we have to lose? It's only the only way we have of bridging nationalist divides and avoiding WWIII; so who cares right?

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Ali Abunimah

Co-founder of The Electronic Intifada and author of The Battle for Justice in Palestine, now out from Haymarket Books.

Also wrote One Country: A Bold-Proposal to End the Israeli-Palestinian Impasse. Opinions are mine alone.