ICC rejects appeal for Marmara raid probe, but says prosecutor fudged decision

International court rejects request for judicial review of decision to not investigate flotilla deaths, though it admits errors made by Fatou Bensouda in reaching conclusion

THE HAGUE, Netherlands — The International Criminal Court on Wednesday dismissed an appeal against a decision not to probe Israel over a deadly raid on an aid flotilla to Gaza in 2010.

Ten Turkish activists died after IDF commandos boarded the Mavi Marmara — the largest in the six-vessel convoy — as it sailed towards the Hamas-ruled coastal enclave in defiance of an Israeli security blockade designed to prevent the terror group importing weapons.

The Hague-based tribunal’s prosecutor Fatou Bensouda found in December there was no basis to proceed with a full investigation.

The Union of the Comoros, the Indian Ocean nation where the ship was registered and which made the original complaint, had challenged that decision.

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)

ICC judges said on Wednesday that the court “rejects Comoros’ request for judicial review of the prosecutor’s decision not to open an investigation.”

The judges admitted that Bensouda made “errors” in an original 2014 decision not to investigate.

They also said she did not “genuinely reconsider” that decision as the court had ordered, and then made further mistakes before she decided again, in 2019, not to probe the case.

But the judges said it was “unclear” what powers they had to ask the prosecutor to fix the mistakes, and so they were unable to ask her to further review the case.

Israeli commandos boarded the Mavi Marmara by descending on ropes from helicopters. The IDF later said that its forces were attacked with clubs, knives and metal rods as they began to land from the first helicopter, with three soldiers taken captive. It stated that soldiers opened fire after a protester grabbed a weapon from one of the commandos.

Footage taken from Mavi Marmara security cameras, showing the activists onboard as they prepare to attack incoming IDF soldiers on May 31, 2010 (photo credit: IDF Spokesperson/Flash90) — Footage from the Mavi Marmara security cameras shows the activists on board as they prepare to attack incoming IDF soldiers on May 31, 2010. (photo credit: IDF Spokesperson/Flash90)

The ICC was set up in 2002 to deal with war crimes and crimes against humanity.

Families of the Gaza flotilla victims have previously accused the prosecutor’s office of trying to “safeguard Israel.”

In December 2019, prosecutor Bensouda said she wanted to open a full investigation into the broader issue of war crimes in the Palestinian territories.

Bensouda said there was a “reasonable basis to believe that war crimes were committed” in the West Bank, Gaza Strip and East Jerusalem by both the Israel Defense Forces and terrorist group Hamas, as well as other “Palestinian armed groups.”

She has asked the court for a decision on jurisdiction before proceeding. A ruling is expected to be handed down soon.