In a shocking 2-1 decision, the International Criminal Court on Thursday ordered its chief prosecutor Fatou Bensouda to consider opening a full criminal investigation into war crimes allegations against IDF personnel relating to the 2010 Mavi Marmara flotilla, just seven months after she had closed the file.
Using harsh language, the ICC told Bensouda she should have considered more seriously the possibility that the deaths of those killed by the IDF in the incident were “systematic or resulted from a deliberate plan or policy to attack, kill or injure civilians.”
The decision puts the ICC the closest it has ever been to intervening directly in the Israeli-Arab conflict and places the court in the position of potentially being harsher on Israel than Bensouda, who herself has been criticized by Israel for recognizing a State of Palestine.
Prime Minister Benjamin Netanyahu lashed out at the decision. “At a time when, in Syria, [President Bashar] Assad slaughters hundreds of thousands of his own people, Iran sends hundreds to death, and Hamas uses children as human shields in Gaza, the court has chosen to deal with Israel for cynical political reasons,” Netanyahu said.
“In the face of this hypocrisy, our soldiers will continue to guard us from the front and we will defend them in the international arena,” he added.
Haneen Zoabi on board the Mavi Marmara, May 2010
The IDF acted “in self-defense in stopping an attempt to break a blockade established in accordance with international law,” as confirmed by a report sponsored by the UN secretary- general and by a quasi-independent Israeli commission with international observers, the prime minister said.
Foreign Ministry spokesman Emmanuel Nachshon said that “Israel harshly rejects” the ICC ruling and that “Israel had acted in self-defense and in line with international law.”
“It is not clear why the court stubbornly persists in directing resources to superfluous work relating to complaints with cynical political motivations, instead of working on issues for which it was established,” such as mass killings, he continued, concluding that he ultimately expected that the prosecutor’s decision to close the file would be upheld.
Bensouda very well may close the file again, but the court’s order means there is a very serious chance Israelis will face a full criminal investigation – something that has not yet occurred even regarding the 2014 Gaza war, Operation Protective Edge.
Until Thursday’s decision, most thought the flotilla incident and the lawfare surrounding it were in the past.
In the 2010 incident, a group of human rights activists and a smaller group of IHH activists (which the quasi-government Turkel Commission Report identified as affiliated with the Muslim Brotherhood) boarded several ships to try to break Israel’s blockade of the Gaza Strip.
While Israel commandeered and stopped most of the ships without incident, when Israel Navy commandos boarded the Mavi Marmara, IHH activists attacked them, leading to some commandos being wounded and, eventually, 10 deaths on the IHH side.
Turkey and many others in the international community accused Israel of war crimes, but it was cleared by the Turkel Commission and the UN-sponsored Palmer Report, which validated some of Israel’s narrative of fighting in self-defense or said there was not sufficient evidence to pursue Israel for war crimes, even as the Palmer Report said some of the IDF’s force was excessive.
The Comoros Islands filed a complaint against the IDF and some Israeli leaders in May 2013, with scholarly briefs coming in on both sides from a variety of sources since. Many viewed the Comoros Islands as undertaking the issue on behalf of various IHH-Turkish contacts due to the law firm which filed the complaint.
The ICC’s reasoning on Thursday was also harsh with regard to Israel and more general legal issues.
Regarding the Gaza blockade, the court appeared to suggest that the fact that the IDF’s action maintained the blockade and controlled the passing of humanitarian supplies by land somehow added to the gravity of potential war crimes by the IDF. Next, the majority put heavy emphasis on alleged inhuman treatment, torture and cover- up of war crimes by the IDF in how it handled Mavi Marmara passengers after they were detained.
The court said it had wide latitude to order a prosecutor to reopen an examination and that Bensouda’s discretionary authority did not require substantial deference from the judges.
The two judges in the majority were presiding Judge Joyce Aluoch of Kenya and Judge Cuno Tarfusser of Italy.
Judge Peter Kovacs of Hungary dissented, rejecting the majority ICC decision on several grounds.
First, he said, the majority had not been sufficiently deferential to Bensouda’s wide discretion as prosecutor to decide when to open and close investigations.
Next, Kovacs criticized the majority for mixing allegations of inhuman treatment of flotilla passengers after they were detained with alleged war crimes of murder during the IDF’s taking control of the Mavi Marmara.
Effectively, Kovacs said the majority was taking upon itself to add new alleged war crimes into the mix for analyzing how grave the incident was, instead of reviewing the existing alleged war crimes.
Ultimately, Kovacs found that the killing of 10 passengers in the flotilla incident was not grave enough for the ICC to get involved, especially when compared with a parallel situation such as in Kenya where 1,220 people were killed by Islamists, in six of eight Kenyan provinces.
Crucially, Kovacs added that even if the prosecutor had made a mistake in defining the case as not grave enough, he wrote that the IDF had issued warnings to the ship to turn around and acted in the face of “violent resistance” from passengers.
In November 2014, Bensouda rejected the Comoros Islands’ war crimes complaints and request to open a full investigation against Israeli soldiers and leaders regarding the incident.
The Foreign Ministry response to the overall decision at the time was: “Israel takes positive note of the decision by the Prosecutor of the International Criminal Court (ICC) to close the Preliminary Examination into the Flotilla (Mavi Marmara).”
However, despite rejecting the Comoros Islands’ complaints, the ICC prosecutor’s decision had included a number of statements against Israel’s position in terms of possible war crimes having been committed and referring to Israel as a conquering power.
Bensouda said than that, despite her decision, if the case had gone forward, “there is a reasonable basis to believe that war crimes” were committed by Israel during the incident.
Noting Israel’s view that its withdrawal from Gaza freed it from any argument of legally occupying the Strip, Bensouda wrote: “However, the prevalent view within the international community is that Israel remains an occupying power in Gaza despite the 2005 disengagement.”
The Foreign Ministry responded at the time saying “It should be emphasized that the examination conducted was preliminary only, and the prosecutor decided to close the file without seeing a need to address the issue of resort to self-defense by IDF soldiers who were confronted, as mentioned in the report, by violence from IHH activists in the context of a flotilla which the prosecutor considered as not constituting a humanitarian mission.”