ICC rejects pro-Turkey war crimes allegations against IDF in Gaza flotilla raid

ICC's ruling says that the incident did not rise to the level of severity of broad-based war crimes allegations which the ICC is empowered to deal with.

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November 6, 2014 10:13
3 minute read.
Mavi Marmara

The Turkish ship Mavi Marmara. (photo credit: Wikimedia Commons)

 
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Fatou Bensouda, the chief prosecutor of the International Criminal Court, on Thursday rejected a request to open a full investigation against Israeli soldiers and leaders regarding the raid on the Mavi Marmara in 2010.

Comoros, a Sunni island nation located between Mozambique and Madagascar, had submitted the war crimes complaints and request for investigation.

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The Foreign Ministry had this to say: “Israel takes positive note of the decision by the prosecutor of the International Criminal Court to close the preliminary examination into the flotilla (Mavi Marmara).”

The Jerusalem Post learned of Bensouda’s ruling before it was publicized, noting that her decision said that the incident did not rise to the level of severity of broad-based war crimes allegations that the ICC is empowered to deal with.

In other words, the ICC deals only with cases where there was major fighting and war crimes allegations involving much larger numbers of deaths – as opposed to the Mavi Marmara raid that involved nine deaths and a contained, short conflict on one vessel.

Although there are still proceedings in Turkey on the issue, the ICC’s ruling likely puts the incident to rest after several Israeli, Turkish and UN-related reports have addressed the fallout from it.

In May 2010, a group of foreign activists, along with a smaller group of activists from a Turkish NGO, IHH (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 Hamas in 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 nine deaths on the IHH side.

Turkey and many others in the international community accused Israel of war crimes, but the Turkel Commission and the UN-sponsored Palmer Report cleared Israel of war crimes, validated some of Israel’s narrative of fighting in self-defense or said that there was not sufficient evidence to come after Israel for war crimes, even as the Palmer Report said that some of the commandos used excessive force.

Comoros filed its complaint against the IDF and some Israeli leaders in May 2013, with scholarly briefs coming in for and against from a variety of sources since then.

Many viewed Comoros as pursuing the issue on behalf of various IHH-Turkish contacts due to the law firm that filed the complaint.

Despite rejecting the Comoros complaints, the ICC prosecutor’s decision included a number of statements against Israel’s position in terms of possible war crimes having been permitted and referring to Israel as a conquering power.

Bensouda said that despite her final decision, that 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 the Gaza Strip nine years ago freed it from any argument of legally occupying Gaza, 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 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.”

The ministry statement continued, “It should be noted that any preliminary statement by the prosecutor regarding the conduct of IDF soldiers without addressing at all the central issue of self-defense which would justify the resort to force and without conducting a thorough investigation of the incident itself, is bound to lead to distorted and misleading statements.”

The response also noted that Bensouda did not analyze the issue of complimentarity – meaning the question of whether Israel had investigated the allegations properly – an important point, since the ICC cannot intervene if a country carries out its own competent investigations.

Earlier, the Post had learned that while Israel would have preferred the statements, about a reasonable basis to believe that war crimes were committed, and the prevalent view within the international community regarding the issue of occupation, that when viewing the entire decision in context, these statements were considered qualified and to have little precedential value.

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