For third time, ICC prosecutor refuses to open probe into Gaza flotilla incident

Pro-Israel activists praise Fatou Bensouda for ‘standing up for law and justice’ as six-year legal saga over Israeli commando raid on the Mavi Marmara likely comes to end

Raphael Ahren is a former diplomatic correspondent at The Times of Israel.

Prosecutor Fatou Bensouda in the courtroom of the International Criminal Court (ICC) during the closing statements of the trial of Bosco Ntaganda, a Congo militia leader, in The Hague, Netherlands, August 28, 2018. (Bas Czerwinski/Pool via AP)
Prosecutor Fatou Bensouda in the courtroom of the International Criminal Court (ICC) during the closing statements of the trial of Bosco Ntaganda, a Congo militia leader, in The Hague, Netherlands, August 28, 2018. (Bas Czerwinski/Pool via AP)

The chief prosecutor of International Criminal Court on Monday refused for the third time to open an investigation into the 2010 Gaza flotilla incident, saying any crimes allegedly committed during the raid were not severe enough to merit such a probe.

Fatou Bensouda reiterated her position that there is no reason to launch an investigation into the matter “because there is no potential case arising from this situation that is sufficiently grave, to reconsider a case that she had repeatedly sought to close due to lack of gravity,” her office stated.

On May 31, 2010, Israeli commandos killed 10 Turkish citizens aboard the Mavi Marmara, one of several vessels that was aiming to break the Gaza blockade. Israel said its soldiers were violently attacked by activists armed with clubs and metal bars when they boarded the vessel.

Israel has imposed a blockade on Gaza since 2007, when the Hamas terror group ousted the Palestinian Authority from the Strip, in a bid to prevent Hamas and other terrorists from importing arms and weapons into the enclave.

Israel did not immediately comment on the prosecutor’s decision, though officials in Jerusalem have long argued that the court was wasting its limited resources on a frivolous suit in a manner that reflected poorly on other outstanding cases.

The Lawfare Project, a New York-based pro-Israel group that had been involved in efforts to convince Bensouda to close the case, on Monday welcomed her decision.

“We’re extremely pleased the Prosecutor agreed with our analysis and reaffirmed her decision,” said Brooke Goldstein, the organization’s executive director. “It’s refreshing to see an international institution doing the right thing and standing up for law and justice rather than bowing to anti-Israel political pressure.”

The Hague’s six-year engagement with the Gaza flotilla incident started in May 2013, when the Comoros, a small Muslim-majority nation in the Indian ocean, asked the ICC’s prosecutor to investigate the Israeli raid on the Gaza-bound Mavi Marmara three years earlier, during which troops clashed with pro-Palestinian activists.

Ten Turks (including one Turkish-american) were killed and a number of Israeli soldiers were injured.

The incident sparked a severe diplomatic crisis with Ankara, but since the Marmara sailed under the flag of the Comoros, it was that state that referred it to the ICC.

Navy vessels escort the Mavi Marmara to the Ashdod port on May 31, 2010. (photo credit: Kobi Gideon/Flash90)
Israeli Navy vessels escort the Mavi Marmara to the port of Ashdod, May 31, 2010. (Kobi Gideon/Flash90)

In November 2014, Bensouda, the chief prosecutor, decided that there was “no reasonable basis to proceed with an investigation” on the matter. She argued that Israeli forces may have committed war crimes when they stormed the Marmara, but that the possible offenses were not grave enough to merit a prosecution at the ICC.

The Comoros appealed her decision a few weeks later, asking the court’s pre-trial judges to order her to reconsider. Bensouda asked them to dismiss the appeal.

On July, 16, 2015, the three judges of the pre-trial chamber requested that she reconsider her decision not to initiate an investigation into the matter, ruling that she had “committed material errors” in her assessment of the case’s gravity.

Bensouda did not give up. Eleven days later, she appealed the judges’ decision. But on November 6, 2015, the Appeals Chamber dismissed the prosecutor’s appeal based on an interpretation article 82(1)(a) of the Rome Statute, the ICC’s founding document, and Bensouda had to review the case for a second time.

Activists on the 'Mavi Marmara' preparing to attack IDF soldiers (photo credit: IDF Spokesperson/Flash90)
Activists on the ‘Mavi Marmara’ preparing to attack IDF soldiers. (IDF Spokesperson/Flash90)

Two years later, on November 29, 2017, Bensouda handed down what she hoped would be her “final decision” on the flotilla incident, stating that she “remains of the view that there is no reasonable basis to proceed with an investigation,” and that the preliminary examination “must be closed.”

The Comoros in February 2018 applied to the Appeals Chamber for a “Judicial Review,” of the prosecutor’s repeated decisions to close the case, citing “discernable [sic] errors in each of them.”

Bensouda, in turn, argued that the Appeals Chamber may not have jurisdiction to rule in the case, suggesting that it dismiss the Comoros’ requests.

Many other requests and appeals were filed by both sides, arguing about jurisdiction and timetables, until November 2018, when the pre-trial chamber ruled that the prosecutor’s ostensible “final decision” from November 2017 “cannot be considered to be final” and asked her to consider the case for a third time.

In September 2019, the court’s Appeals Chamber also ordered Bensouda to reconsider the case, with Presiding Judge Solomy Bossa giving her a December 2 deadline.

The appeals panel also criticized Bensouda for her rejection of calls by a lower panel of judges to reconsider the case.

“The appeals chamber also finds that the unfortunate language used by the prosecutor to express her disagreement demonstrates that she was entirely misinformed as to what was required of her in conducting the requested reconsideration,” Bossa said.

In her ostensibly “final decision,” Bensouda on Monday insisted that she reached her conclusion to close the case “on the basis of a careful analysis, conducted in good faith.”

The prosecutor maintained her view “that the preliminary examination of this situation must be closed,” her office wrote in a 44-page document. “There remains no reasonable basis to proceed with an investigation, since there is no reasonable basis to conclude that any potential case arising from the situation would be of sufficient gravity to be admissible before the Court.”

Is is theoretically possible that Bensouda will be asked to reconsider a fourth time, though this is considered highly unlikely.

The International Criminal Court in The Hague, August 22, 2016, at the trial of alleged al-Qaeda-linked Islamist leader Ahmad Al Faqi Al Mahdi over the destruction of historic mausoleums in Mali. (AFP/ANP/Patrick Post)

Although Israel was not directly involved in the legalistic back-and-forth, officials in Jerusalem have followed with great disdain the efforts and resources the ICC has invested in this particular case.

The ICC is also conducting an ongoing preliminary examination into alleged crimes committed by Israelis in the Palestinian territories.

The Israeli officials argue that the flotilla incident has no place in a court created to deal with tragedies of a much greater scope than the case, which occurred more than eight years ago and which has already been probed by an Israeli committee headed by jurist Jacob Turkel with the participation of international observers.

“The ICC was established to deal with mass atrocities of concern to the international community as a whole,” an Israeli official told The Times of Israel last year, speaking on condition of anonymity.

“Instead, it has wasted more than five years of its time and resources on an incident that has already been thoroughly reviewed and brought to a close by national and international panels of inquiry, including twice by the court’s own prosecutor.”

AP contributed to this report.

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