ICC says Israel committed flotilla “war crimes” but refuses to investigate

Palestinian children hold pictures of those killed aboard the Mavi Marmara, on 31 May 2017, at a Gaza City commemoration of the seventh anniversary of Israel’s deadly attack on the ship.

Ashraf Amra APA images

The chief prosecutor at the International Criminal Court in The Hague reaffirmed Thursday that there is a “reasonable basis to believe” that the Israeli military committed “war crimes” when it attacked the Gaza flotilla in 2010.

But Fatou Bensouda is once again refusing to prosecute the perpetrators despite how Israel has done nothing to hold them accountable.

She claimed that there was “no potential case” of “sufficient gravity” under the court’s founding Rome Statute to proceed with a formal investigation.

Lawyers for the victims slammed Bensouda’s move to once again close the file on Israel’s killings aboard the Mavi Marmara as a “flawed decision in which the prosecution has gone out of its way to sidestep having to launch any real investigation at the international level, knowing full well that the national authorities are not investigating these crimes.”

The lawyers, with the London firm Stoke White, are vowing to appeal. They say that Bensouda’s office “has ample evidence that shows that the violent attack on civilians on the high seas was very serious and clearly grave enough to warrant at least further investigation.”

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, Mavi Marmara, killing nine persons. A tenth victim died of his injuries in May 2014. At least 20 others were seriously injured aboard the Mavi Marmara.

“Serious errors”

In 2015, a panel of judges at the Hague court ordered Bensouda to review her 2014 decision not to investigate the attack.

In a scathing ruling, the judges said Bensouda had “committed material errors” and underestimated the seriousness and international significance of the alleged Israeli crimes.

But Bensouda was unmoved by this admonition and announced this week that her decision remains unchanged.

She now insists that arguments presented by victims’ lawyers and by the government of the Comoros, the Indian Ocean state where the Mavi Marmara was formally registered, “do not demonstrate that my office’s assessment of the information made available in 2014 was unreasonable, unfair or legally incorrect.”

Yet she acknowledges that “my conclusion remains that there is a reasonable basis to believe that war crimes were committed by some members of the Israel Defence Forces during and after the boarding of the Mavi Marmara.”

“Lamentable”

In 2015, Geoffrey Nice, lead counsel for the victims, told The Electronic Intifada that Bensouda’s arguments for not pursuing the case were “complete hogwash.”

Nice, who led the prosecution of late Serbian leader Slobodan Milosevic at the international war crimes court for the former Yugoslavia, suggested that Bensouda was bowing to Israeli and US pressure.

In response, Bensouda submitted a written complaint to the judges that Nice’s comments were “derogatory” and “inappropriate” and asked them to order him to “refrain from commenting on the merits of the case outside the courtroom.”

On Friday, victims’ lawyers said it was “lamentable that the prosecutor has been considering only the question of whether to open an investigation for over four years now.” According to Stoke White, Bensouda’s office “could have by now in actual fact investigated the case, instead of avoiding its responsibility to strive to end impunity for international crimes.”

Ensuring impunity

Bensouda’s stance is all the more remarkable in light of Turkey’s decision last year to drop its own cases against Israeli officers accused of involvement in the attack, as part of a political reconciliation between Ankara and Tel Aviv.

Although one of the victims, Furkan Dogan, had American citizenship, US authorities have done nothing to bring his killers to justice. Last year, several flotilla survivors filed a civil case in US federal court seeking compensation and punitive damages from Israel for the attack.

That means there are currently no efforts by national criminal prosecuting authorities in any country to bring the perpetrators to justice.

According to its founding statute, the International Criminal Court only steps in when national judicial authorities are unwilling or unable to carry out genuine proceedings.

In other words, the Hague court is supposed to be a safety net, ensuring that serious international crimes do not go unpunished. But it is failing to do that in this case.

Ominous sign

Bensouda’s latest decision in the flotilla case is another indication that the International Criminal Court is unwilling to take on powerful countries or their allies. It’s an ominous sign for Palestinians who are waiting for the prosecutor to decide whether to proceed on allegations of Israeli war crimes in the occupied West Bank and Gaza Strip.

In September, Palestinian human rights investigators handed the prosecutor’s office an additional 700 pages of evidence of Israeli war crimes and crimes against humanity.

Despite the International Criminal Court’s loss of credibility due to its exclusive focus on prosecuting people from Africa, lawyers and victims in the Mavi Marmara case are not abandoning their search for accountability.

“This is not the end of the road. We will ask the ICC judges to review this decision under the provisions of the [Rome] Statute and rules in light of its demonstrable errors,” said Rodney Dixon, the attorney for the Comoros government. “Those who have been harmed will not give up on obtaining justice despite all the unwarranted hurdles that have been placed in their way.”

One of the victims of the attack, UK national Alexandra Lort Phillips, said “that we have waited so very long for our case to be looked into fairly and independently, and the prosecutor will not even do that. We will not stop here. Sometimes it takes many years and even decades for the truth to come out, and it will in our case through all of our efforts to achieve justice.”

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Bensouda's Paradox- the condition under which an act of mass homicide can simultaneously qualify as a war crime yet lack sufficient gravity to merit prosecution.

In fact, the gravity of Israel's lethal attack in 2010 on the Gaza flotilla extends beyond the material event. This crime is typical and representative of a host of closely related acts which collectively are known as the Gaza Blockade. A successful prosecution in this instance could have important reverberations. The blockade as a whole is of an identical character with the attack on the Mavi Marmara and its passengers. Conviction in this case could lead to broader prosecutions of Israel's leaders, and it is this prospect that Bensouda appears eager to forestall. As well, a serious threat of prosecution could result in a lifting or at least an amelioration of the dreadful conditions imposed on the people of Gaza by Israel. So there's much at stake in a case she finds lacking in "sufficient gravity".

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I wonder when Bensouda is convinced of a case having "sufficient gravity". One murder? Ten murders? Thousand murders. When Mrs. Bensouda are you finally convinced of a case having sufficeint gravity?
I consider the ICC as the long neo colonial arm of western hegemonism. It is a shame for me living in a country that pretends justice and openly demonstrates lacking that.

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Ali Abunimah

Ali Abunimah's picture

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.