The appeals chamber of the International Criminal Court (ICC) ruled on Friday that the office of the prosecutor must review its decision to close a preliminary examination into Israel’s deadly attack on a ship full of activists in 2010.
During the attack, Israeli soldiers killed 10 civilian passengers and injured many more (nine died immediately and a tenth died of his wounds in May 2014).
In November 2014, ICC chief prosecutor Fatou Bensouda closed her examination into the case, saying it was without “sufficient gravity” to justify further action.
Bensouda noted that there was a reasonable basis to believe Israel committed war crimes. Nevertheless she wrote: “Without in any way minimizing the impact of the alleged crimes on the victims and their families, I have to be guided by the Rome Statute, in accordance with which, the ICC shall prioritize war crimes committed on a large scale or pursuant to a plan or policy.”
The case had been referred to the ICC by the Union of the Comoros, the Indian Ocean archipelago state where the Mavi Marmara was registered.
Rodney Dixon, who is part of the legal team representing the Comoros and the victims of the 2010 attack, told The Electronic Intifada: “She has been directed to reconsider her decision.”
Representatives of the Comoros appealed the prosecutor’s decision, and in July 2015 a pre-trial chamber ruled that Bensouda had made errors in her decision to dismiss the case.
Bensouda appealed that decision, which the appeals chamber upheld on Friday.
When Bensouda closed the case last year she had argued there was no evidence of a plan or policy to target civilians when Israel attacked the flotilla.
A United Nations fact-finding mission had found that five out of the 10 passengers killed were shot in the head at close range.
“She was not prepared to link what happened to the wider conflict or the blockade of Gaza. She said it was an isolated incident,” Dixon explained.
Both the pre-trial chamber and the appeals court found she had made errors in her decision.
“This has been going on for a number of years and in that time the victims haven’t received any justice,” Dixon said. “We want her to open an investigation immediately and determine whether charges can be brought or not.”