ICC judges demand reopening of probe into Mavi Marmara raid

The International Criminal Court on Thursday requested that chief prosecutor Fatou Bensouda reopen a probe into the 2010 Mavi Marmara flotilla incident, in which nine Turkish activists died in clashes with Israeli forces on a ship attempting to break the Gaza blockade.

Israel condemned the decision, and said the judges had been mobilized by Palestinian “incitement.”

Prime Minister Benjamin Netanyahu said the IDF commandos involved acted in self-defense, on a mission to maintain an internationally backed naval blockade. The ICC judges’ move was “motivated by cynical politics,” he said. Israel’s soldiers, he added, would “continue to keep Israel safe,” and Israel would “continue to protect them in the international arena.”

In May 2013, the Union of Comoros, a small archipelago nation off the coast of Africa, filed a request with the ICC to investigate Israel for war crimes.

Eight Turks and one Turkish-American were killed and several other pro-Palestinian activists were wounded when Israeli commandos intercepted the Mavi Marmara ship on May 31, 2010, as it attempted to bust Israel’s naval blockade.

The Israel Defense Forces said its soldiers acted in self-defense after they were attacked with lethal weapons. Several soldiers were seriously wounded in the clash.

Bensouda said in November there would be no investigation leading to a prosecution, despite a “reasonable basis” to believe that war crimes were committed. She said any potential cases arising from an investigation into the incident would not be of “sufficient gravity” to justify further ICC action.

In a response at the time, Israel criticized “imprudent statements” that appeared in the ICC report in November, namely what it said was the omission of mention of the “lethal, pre-planned and organized violence” perpetrated by activists on board the flotilla, such that the IDF soldiers were forced to defend themselves.

In a statement issued by the ICC on Thursday, however, a panel of three judges stated that the prosecutor “committed material errors in her determination of the gravity of the potential case.”

Bensouda, the judges said, did not take into account events that occurred outside of the court’s jurisdiction — notably the treatment of prisoners once they arrived in Israel — when determining the gravity of the case.

The judges requested Bensouda “reconsider her decision not to investigate, if it concludes that the validity of the decision is materially affected by an error, whether it is an error of procedure, an error of law, or an error of fact.”

This decision was made by Judges Joyce Aluoch and Cuno Tarfusser. The third judge, Péter Kovács, dissented on the request.

Deputy Foreign Minister Tzipi Hotovely condemned the decision, indicating it was part of a campaign of “Palestinian incitement.”

“It’s very puzzling to me why the International Criminal Court would decide to open a probe into soldiers who defended themselves against brutal attacks by terrorists aboard the Marmara,” Ynet news website quoted Hotovely as saying.

“There are Palestinian actors who are trying all the time to incite international bodies against Israel. I hope those same bodies will be able to identify the incitement and not help it along.”