Mavi Marmara, 2010.
(photo credit: REUTERS)
The International Criminal Court’s top body late Friday kept the 2010 Mavi Marmara flotilla war crimes allegations against Israeli commandos and war-policy- making officials alive, ruling that ICC Prosecutor Fatou Bensouda must delve deeper into the case before she closes it.
The ruling prolonged internal drama and disagreement among the ICC’s own bodies over whether to dive further into the Israeli-Arab conflict than it ever has before, which would bring Israeli soldiers closer to the real possibility of war crimes trials.
There is disagreement over the issue even within the ICC Appeals Chamber, the institution’s top body. Friday’s vote saw a razor thin 3-2 majority voting against Bensouda’s appeal to keep the case closed. In an earlier lower court ruling by the ICC Pretrial Chamber, the vote had also been split 2-1, ruling against Bensouda over how to handle the flotilla raid.
In November 2014, Bensouda closed the file, saying that while the IDF’s conduct in the incident seemed to her to display elements of war crimes, the 10 activists killed by the Israel Navy commandos simply did not constitute a high enough body count to warrant her involvement, since she focuses on mass killings.
Bensouda’s decision was to end her review of the Mavi Marmara raid at a preliminary stage, without ordering a full criminal investigation, let alone filing indictments, and was viewed by the pro-Israel side as a first ICC victory.
But the victory did not last long.
In July, the ICC Pretrial Chamber heard an appeal by the lawyers for the Comoros that had filed the war crimes complaints against Israelis and ordered Bensouda to reconsider her decision, potentially leading to her opening a full criminal investigation.
At the time, both Prime Minister Benjamin Netanyahu and the Foreign Ministry spokesman condemned the ruling.
Bensouda then appealed to the ICC’s top court, hoping to find support for her original decision to close the Mavi Marmara file and revoke the lower ICC court’s ruling.
Friday’s decision by the ICC’s top Appeals Chamber did not say whether Israeli soldiers committed war crimes.
Rather, it said that Bensouda had no right to appeal the decision denying her authority to close the case, due to procedural rules related to the kinds of cases that are admissible before the ICC.
However, Bensouda may still be permitted to stick to her ruling by providing different grounds for closing the case, a move many expect.
Alternatively, she could also decide to open a full criminal investigation as the ICC Pretrial Chamber clearly intended and the ICC Appeals Chamber supported.
If Bensouda attempts to close the file again, but on new grounds, Israeli soldiers will have escaped the first real danger ever posed to them by the ICC. However, Bensouda could still go after Israeli soldiers in relation to the 2014 Gaza war and subsequent events.
If Bensouda opens a full criminal investigation, even if the investigation does not end with indictments, Israeli soldiers will be at greater risk of prosecution for alleged war crimes than ever before.
Israel is not a member of the ICC and has many legal arguments that it could and would make to block the case if it reaches the level of a full criminal investigation.
But even reaching that point would be a great embarrassment and encourage those who wish to delegitimize the country.
The three ICC Appeals Chamber judges who voted that Bensouda could not appeal and must reconsider her decision to close the file were Sanji Mmasenono Monageng of Botswana, Howard Morrison of the UK and Piotr Hofmanski of Poland.
Judges Silvia Fernández de Gurmendi of Argentina and Christine Van den Wyngaert of Belgium were the two ICC Appeals Chamber judges who voted that Bensouda had the right to appeal, though they did not weigh in on whether her decision to close the file was correct.
The 2010 Mavi Marmara raid saw a group of rights activists, combined with a smaller group of IHH activists (which the quasi- government Turkel Commission Report identified as affiliated with the Muslim Brotherhood) board several ships to try to break Israel’s blockade of Hamas in Gaza.
While Israel commandeered and stopped most of the ships without incident, Israel Navy commandos boarded the Mavi Marmara and were attacked by IHH activists, leading to the injury of some commandos and the eventual deaths of 10 IHH activists.
Turkey and many others in the international community accused Israel of war crimes. But the Turkel Commission and the UN-sponsored Palmer Report not only cleared Israel of said crimes, but validated some of Israel’s claims of fighting in self-defense. The Palmer Report did say that some of the IDF’s use of force was excessive.
The Comoros filed its complaint against the IDF and some Israeli leaders in May 2013. Since then, scholarly briefs for and against the claims have been written by a variety of sources.
Because of the law firm that filed the complaint, many viewed the Comoros as undertaking the issue in behalf of various IHH-Turkish contacts.