Judges at the International Criminal Court on Monday ordered the chief prosecutor to reconsider her decision not to open a formal investigation into Israel’s lethal attack on a humanitarian flotilla to Gaza nearly a decade ago.
The order – issued by the ICC’s appeals chamber – was “a decisive victory for the victims of the attack who have tirelessly sought justice for crimes committed against them for over nine years,” Stoke White, the law firm representing victims, said in an emailed statement.
In the early hours of 31 May 2010, Israeli commandos boarded and seized the boats in international waters in the Eastern Mediterranean.
At least 20 others were seriously injured aboard the Mavi Marmara.
In 2013, the Comoros, the country where the Mavi Marmara was registered, brought a war crimes complaint to the ICC.
The following year, the chief prosecutor Fatou Bensouda concluded that there was “a reasonable basis to believe that war crimes under the court’s jurisdiction” were committed during the Israeli attack.
But she still decided not to open a formal investigation, claiming the alleged crimes were not of sufficient gravity.
In 2015, a panel of ICC judges found that the prosecutor made five serious errors in her decision not to proceed with an investigation and ordered her to reconsider.
Despite this, in 2017, Bensouda again reaffirmed she would not open a formal investigation.
Monday’s decision requires Bensouda to reconsider once again. And again, the judges are scathing in their criticism of the prosecutor’s conduct.
“When the prosecutor is reconsidering her decision not to investigate upon a request by the pre-trial chamber, it will not suffice for the prosecutor to do so in a perfunctory manner such that the authenticity of the exercise could be questioned,” the appeal judges state.
“Rather, the prosecutor is required to demonstrate how she addressed the relevant issues in light of the pre-trial chamber’s directions.”
The judges state that “the unfortunate language used by the prosecutor to express her disagreement” with the earlier decision ordering her to reconsider “demonstrates that she was entirely misinformed as to what was required of her in conducting the requested reconsideration.”
In another remarkable rebuke, the judges call Bensouda “disrespectful” and tell her to “exercise more restraint when addressing chambers of the court.”
Bensouda’s apparent determination – despite the evidence of war crimes which are not being prosecuted in any other court – to block justice for victims of the Israeli attack on the Mavi Marmara comes against the background of the ICC’s prosecutor’s foot-dragging on investigations into a host of alleged Israeli crimes.
Bensouda has been conducting a preliminary examination of the wider situation in the West Bank and Gaza Strip since 2015.
She has still not rendered a decision on whether to proceed to the next stage, a formal investigation that could lead to war crimes indictments and arrest warrants.
The court has been under intense political pressure from the United States. Last year, the Trump administration threatened the ICC with sanctions if it moved to bring American or Israeli war crimes suspects to justice.
In April, the US revoked Bensouda’s visa.
Just days later, a panel of ICC judges issued a ruling that alarmed human rights defenders when it decided not to open a formal investigation into war crimes in Afghanistan.
That decision was against the recommendation of Bensouda, who concluded there was a “reasonable basis to believe” that war crimes had been committed by the US military, the CIA, the Taliban and Afghan state forces.
In that case Bensouda wanted to proceed with a formal investigation. But the judges claimed too much time had passed.
It was the prosecutor’s office, however, that took more than 10 years to conduct its preliminary examination.
Endless delay meant justice denied for hundreds of victims in Afghanistan.
In cases involving Israel, Bensouda has also repeatedly chosen procrastination over decisive action to bring justice.
She will not be able to delay indefinitely in the flotilla case, however. The judges have given Bensouda until 2 December to reach a new decision.
“Having herself confirmed that there were reasonable grounds to believe that war crimes were committed by the Israeli Defense Forces during the raid on the flotilla, the prosecutor should waste no further time in opening an official and full investigation,” lawyers Stoke White stated.
“The victims have renewed hope that the ICC will deliver justice and accountability.”