The International Criminal Court chief prosecutor has shut the door permanently on war crimes allegations relating to the 2010 Mavi Marmara flotilla.
After years of attempting to go after top Israeli political and military officials in courts in Turkey and Europe as well as in the ICC for the deaths of 10 activists killed by Israel Navy commandos, the ICC prosecutor’s decision on Thursday to close the case effectively ends the last real threat of prosecution.
The case has been controversial within the ICC system.
In November 2014, ICC Chief Prosecutor Fatou Bensouda tried closing the file a first time, saying that while the IDF’s conduct in the incident seemed to her to display elements of war crimes, the 10 activists killed simply did not constitute a high enough body count to warrant her involvement, since she focuses on mass killings.
Bensouda’s November 2014 decision was meant 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 then the ICC Pretrial Chamber voted on a 2-1 split ruling against Bensouda over how to handle the flotilla raid, ordering her to open a full criminal investigation.
Bensouda appealed to the ICC’s top body, the appeals chamber, and got a mixed result in November 2015.
In a razor thin 3-2 vote against Bensouda’s appeal, the ICC Appeals Chamber ordered her to review her conclusions a second time, looking at a wider array of available information, but allowed her to come to the same decision as long as she performed the review.
Two years later, Bensouda explained that after reviewing additional information, even as “there is a reasonable basis to believe that war crimes were committed by some members of the Israel Defense Forces...
no potential case arising from this situation can, legally speaking, be considered of ‘sufficient gravity’... therefore barring the opening of an investigation.”
Crucial to her decision was her finding that “there was no reasonable basis to believe that the identified crimes were committed on a large-scale or as part of a plan or policy.”
Previously, Israel succeeded in closing a range of other cases against it internationally regarding the flotilla and Turkey closed its cases against Israel after the two countries reached a deal in August 2016.
The ICC case was the last big case remaining open.
In the 2010 Mavi Marmara raid, a group of rights activists, combined with a smaller group of IHH activists (which the quasi-government Turkel Commission Report identified as being affiliated with the Muslim Brotherhood) boarded 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 war crimes complaint to the ICC came from the Island of Comoros in May 2013.
Because of the law firm that filed the complaint, many viewed the Comoros as undertaking the issue on behalf of various IHH-Turkish contacts.
Bensouda’s alleged war crimes preliminary examination of the 2014 Gaza war and the settlement enterprise is still open with indications that it will be years before she reaches a decision on whether to close the case or move to a full criminal investigation.
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