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.
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.
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.