ICC closes door on Gaza flotilla probe

Palestinians in Gaza City hold portraits of the humanitarian activists killed during Israel’s siege on the Mavi Marmara on the 10th anniversary of the massacre, 31 May 2020.

Yasser Qudih APA images

A panel of judges at the International Criminal Court has dismissed an appeal over the chief prosecutor’s decision not to proceed with an investigation into Israel’s deadly attack on a ship in international waters in 2010.

Israeli soldiers fatally wounded 10 people aboard the Mavi Marmara after raiding the ship, which was part of a civilian flotilla aiming to break the ongoing siege on Gaza.

The pre-trial chamber’s decision this week seemingly brings an end to seven years of legal proceedings and back-and-forth between the prosecutor, Fatou Bensouda, and the panel of judges which repeatedly requested that she reconsider her decision not to investigate.

Bensouda has acknowledged that “there is a reasonable basis to believe that war crimes were committed” by Israeli forces when they boarded the Mavi Marmara.

But she has insisted that the Israeli attack on the high seas is not “sufficiently grave” to warrant prosecution.

Judges have identified a series of errors that Bensouda was asked to correct.

In their decision this week, the judges state that Bensouda “has not genuinely reconsidered” her 2014 determination to avoid an investigation. She also “committed new errors” in the reaffirmation of her decisions last year, according to the judges.

These errors include the prosecutor’s assessment of the gravity of any potential cases arising from the situation.

In her 2019 reaffirmation of her decision not to prosecute, Bensouda stated that the Israeli commandos who stormed the Mavi Marmara appeared to bear the greatest responsibility for alleged crimes and would therefore be the focus of any investigation.

She found that there is no reasonable basis to believe that senior Israeli commanders and civilian leaders not present on the Mavi Marmara were responsible.

As the judges summarize, Bensouda has argued that the scope of potential cases is likely to be limited and the identification of perpetrators of the crimes of wilful killing and serious injury would be difficult given the “chaotic circumstances” during the attack on the Mavi Marmara.

The judges note that the prosecutor has “essentially excluded from the scope” of any potential investigation “all categories of persons apart from the direct perpetrators, from the immediate commanders … to the senior [Israeli military] commanders and Israeli leaders.”

The judges add that an initial assessment “should never lead to the exclusion of certain categories of persons before the investigation has even begun.”

The prosecutor has stated that she was not directed by the pre-trial chamber to “consider whether the investigation would extend” to senior commanders and officials, “but whether it would extend to those most responsible, whoever they may be.”

New evidence excluded

Bensouda has additionally relied only on the information made available to her by November 2014. That would exclude evidence arising by way of testimony by Israeli Prime Minister Benjamin Netanyahu and Ehud Barak, Israel’s defense minister at the time of the attack on the Mavi Marmara, to a public commission.

Bensouda’s claims have been contested by the government of Comoros, where the Mavi Marmara was flagged. In an appeal filed during March this year, Comoros argued that the evidence “demonstrates that the entire operation was carefully planned and directed by several ministries and the top echelons” of the Israeli military.

The requests by the pre-trial chamber for Bensouda to reconsider her decision, however, held that this “must be conducted on the basis of the information already in the prosecutor’s possession.”

The prosecutor already possessed at that time information that “may reasonably suggest that there was a prior intention and plan to kill the passengers,” the judges note. This was the use of live fire by the Israeli military prior to storming the Mavi Marmara.

The judges also faulted as “premature” the prosecutor’s determination that Israeli soldiers’ alleged mistreatment of passengers on the Mavi Marmara did not qualify as inhumane treatment.

“The prosecutor should have recognized that there was a reasonable basis to believe that the war crime of torture or inhumane treatment was committed,” the judges state.

They add that “the deliberate denial of medical treatment has been found in the jurisprudence of the court and of other courts to amount to cruel treatment as a war crime … or to other inhumane acts as a crime against humanity.”

Israeli soldiers and police routinely deny medical treatment to Palestinians shot in what Israel alleges are attacks on its forces but in what many instances amount to unlawful killings.

The judges also fault the prosecutor for introducing considerations irrelevant to the assessment of the gravity of the potential case by referencing the “passengers’ violent resistance” on the Mavi Marmara, even positing that Israeli soldiers may have acted in self-defense.

In her 2014 decision not to investigate, Bensouda determined that passengers aboard the Mavi Marmara were protected under the Geneva Conventions and that their killing and injury amounted to war crimes.

Bensouda had found there was a reasonable basis to believe that a crime within the court’s jurisdiction had been committed. Because of this, the judges state, “it is inappropriate for her to rely on uncertainties or the existence of several plausible explanations as to the alleged commission of the crimes.”

The judges also fault the prosecutor for failing “to demonstrate how she has assessed the harm suffered by the victims,” leading them to conclude that she “has not assigned any weight to the impact of the alleged crimes on the direct and indirect victims.”

This is separate from the scale of the crimes, which “relates to the number of victims, the geographical area affected, and the span and intensity of the alleged crimes over time.”

Impact relates to the extent of harm experienced by victims, whether physical, psychological or material, according to the judges.

They state that the number of victims registered to participate in the proceedings concerning the Mavi Marmara siege “is close to 500.”

Other cases “of comparable or lesser gravity” than the Mavi Marmara situation were determined to warrant further action by the court, the judges note.

Bensouda’s “failure to apply the gravity requirement with consistency … opens the court up to criticism of double standards and arbitrariness,” they state.

Jarring conclusion

The judges, however, ultimately rejected the appeal by the government of Comoros to proceed with an investigation because of a lack of clarity “whether and to what extent it may request the prosecutor to correct the errors identified by the chamber.”

Fewer than 10 paragraphs of the judges’ 51-page filing are dedicated to explaining its rejection.

It is a jarring conclusion, given the criticism of the prosecutor’s failure to address errors to their satisfaction in the rest of the filing.

The ICC closing the door to war crimes investigations will no doubt frustrate the Mavi Marmara victims who have sought justice for more than a decade. Once again, Israel faces no lasting consequence for alleged war crimes.

But it has not washed its hands of the ICC.

In December last year, after a lengthy preliminary investigation, Bensouda recommended that the court investigates alleged war crimes perpetrated in the West Bank and Gaza Strip.

The same pre-trial chamber of judges that closed the Mavi Marmara situation at the ICC is currently considering whether the international tribunal exercises jurisdiction in occupied Palestinian territory.

The Trump administration in Washington has taken the unprecedented measure of placing economic sanctions on Bensouda and another ICC staff member because of the court’s pursuit of investigations in Afghanistan, which could see the indictment of US personnel, as well as the situation in Palestine.

Despite how Comoros referred the Mavi Marmara situation to the ICC, there is speculation that the Indian Ocean island will be among the next Arab League nations to normalize relations with Israel.

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Comments

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No doubt there will be a "lack of clarity" as to whether the ICC exercises jurisdiction in the "occupied territories". In fact the only thing that is clear is that 'justice' is nothing more than a word in a world that belongs to the powerful whenever they say it does. 'Justice' is a fig leaf, placed over a reality too disturbing for the citizens of our great democracies. Why is there a lack of clarity about unprovoked, unnecessary killings? Why is the ICC unclear about the absolute need for law to seek justice in the case of murder?

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"Fewer than 10 paragraphs of the judges’ 51-page filing are dedicated to explaining its rejection."

Smacks of interference by an outside power (we know who).

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Let’s hope the ICC will stand up to the US and Israel, both perpetrators of war crimes.

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The Israelis are good at attacking boats and getting away with it. They devastated the USS Liberty on 8th June 1967. Some 200 people were killed or injured. When Lyndon Johnson leaked details to the press in spite of the absolute news blackout, he was blackmailed: back off or we'll accuse you of blood libel and smear you as an anti-Semite. He complied. The Israelis knew hours before the attack the ship belonged to their ally. They jammed its radio frequencies. The Israeli State is ruthless, dishonest, vicious and thinks itself utterly entitled. It is a psychopathic State. Psycopaths are plausible and manipulative. The Israelis are very good at exerting influence. They know who to get at and they know how to do it. No international body is exempt. Only grassroots rebellion will bring down this regime of egregious arrogance.

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So an unprovoked attack by Israeli commandos by helicopter at night on a civilian ship in international waters, resulting in 10 deaths and a number of wounded by small arms toted by the attackers, against unarmed aid and medical workers IS NOT A WAR CRIME. So why bother with this ICC at all. It is hopelessly corrupt or spineless. It is a waste of space, time and money. This Bensouda person should take up Israeli citizenship. He/she has earns it

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She .. Her pronoun of choice is 'she' and also, yeah.

Other than that. I agree. But did you really read this and not get that?

Yeah, this is massively disappointing and awful news. But still. Minor point maybe however. Still. Aren't we better than that?

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*_"But she (Fatou Bensouda) has insisted that the Israeli attack on the high seas is not “sufficiently grave” to warrant prosecution."_*

If that's not "sufficiently grave" then what is? I wonder.

Someone really should ask her that and get her response & the reason(s) why she thinks so.

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What's staggering is that it's a "permit to kill" given to any army against any boat manned by civilians cruising in international waters. Or is it only to the Israeli army and all the others would be prosecuted? One may wonder.

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We're the banker. We hold the real estate cards. We allow others to have tokens of self-rule and we read the rules the way we want to and when we can't find any rationale we can sell, we break the rules and we'll break anybody who complains, much less tries to stand in our way.
We hold the nuclear Trump card and have proved we'll use it. Hasn't Pompeo the pompous come and left a horse's head in your bed yet? Play ball and you can do anything you want, we're printing get out of jail free cards for our friends, our "coalitions of the willing". Just show us you like us better than Palestine and we'll cut you in. Come on, let's make a deal!

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Maureen Clare Murphy

Maureen Clare Murphy's picture

Maureen Clare Murphy is an associate editor of The Electronic Intifada and lives in Chicago.