With Marmara case closed, Ramallah learns going to ICC not easy as ABC
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Analysis

With Marmara case closed, Ramallah learns going to ICC not easy as ABC

Decision to halt war crimes probe over deadly 2010 raid on flotilla ship shows Ramallah that tribunal won’t automatically find Israel guilty

Raphael Ahren is the diplomatic correspondent at The Times of Israel.

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)
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)

Israelis officials didn’t break out the champagne after the International Criminal Court announced Thursday that it would not probe the 2010 flotilla incident, during which pro-Palestinian activists and IDF troops clashed aboard the Gaza-bound Mavi Marmara ship.

Ramallah didn’t celebrate over the decision either.

Yes, the report suggests that Israeli troops might have committed war crimes. But as the Palestinians threaten to take Israel to the Hague-based court as well over war crime accusations, the decision to drop the Marmara case indicates that the ICC is a turf on which an automatic Palestinian victory cannot be taken for granted.

From an Israeli perspective, the report in which ICC prosecutor Fatou Bensouda explained why she was not opening a full investigation was not ideal.

Bensouda said the incident, which resulted in the deaths of nine Turkish citizens during a melee aboard a ship trying to break the Gaza blockade, lacked “sufficient gravity.”

While noting that war crimes could have been committed, she said she would not delve into whether the soldiers acted in self defense, drawing a lukewarm response from the Israeli Foreign Ministry.

The flotilla ‘does not appear to reasonably fall within the humanitarian assistance paradigm,’ the ICC prosecutor found

But Jerusalem is likely satisfied with the bottom line, that Israel will not stand in the dock for war crimes for the May 31, 2010 episode.

Palestinian Authority President Mahmoud Abbas, however, will have to do some serious thinking. He soon intends to present the United Nations Security Council with a draft resolution calling for an Israeli withdrawal from the West Bank within two years. If the Americans use their veto and block the resolution, the Palestinians have threatened to join the Rome Statute — in other words, sue Israel from war crimes at the ICC.

But Bensouda’s decision this week not to further pursue the Marmama case, despite some problematic segments, suggests that the court is not out to get Israel. Getting Israeli into the dock in The Hague, and eventually convicted, will not be as easy as some in Ramallah hope.

The Mavi Marmara is seen off the coast of Israel in May 2010. (photo credit: Kobi Gideon/Flash90)
The Mavi Marmara is seen off the coast of Israel in May 2010. (photo credit: Kobi Gideon/Flash90)

Indeed, turning to the ICC can backfire at times. During the Palestinians first attempt to incriminate Israel there, after the 2008-2009 Operation Cast Lead in Gaza, the prosecutor rejected the file because Palestine is not a state, and thus the court had no jurisdiction to launch an investigation into acts committed there.

Since then, however, the “State of Palestine” was granted non-member state status at the UN, and the ICC has indicated that it could join the court.

And now this, the second occasion on which pro-Palestinian activists turned to The Hague, hasn’t turn out well, from their perspective. While the case against Israel was brought to the court by Comoros (a member of the ICC), it is clear that the tiny African island nation acted on behalf of the IHH, the Turkish “International Humanitarian Relief Organization” behind the flotilla.

Israel declared the IHH a terrorist organization in late 2002. Bensouda’s report this week doesn’t go that far, but she acknowledges that the 2010 flotilla to Gaza cannot be considered a humanitarian mission.

The flotilla “does not appear to reasonably fall within the humanitarian assistance paradigm,” the report states on page 52, “due to its apparent lack of neutrality and impartiality as evidenced in the flotilla’s explicit and primary political objectives (as opposed to a purpose limited to delivery of humanitarian aid), failure to obtain Israeli consent, and refusal to cooperate with the Israeli authorities in their proposals for alternative methods of distributing the relief supplies.”

Trying to get Israel condemned at the ICC can easily boomerang, as Israeli officials have warned.

Once the Palestinians join the Rome Statue and the court, they themselves will be exposed to accusations of war crimes and crimes against humanity — and despite their public statements, politicians in Ramallah are aware that the prosecutors would quickly discover multiple violations, in the West Bank and especially in Gaza, from which Hamas fires rockets indiscriminately into Israel.

The International Criminal Court in The Hague, Netherlands (photo credit: Vincent van Zeijst/Wikimedia Commons/File)
The International Criminal Court in The Hague, Netherlands (photo credit: Vincent van Zeijst/Wikimedia Commons/File)

To be sure, Thursday’s decision by the ICC to drop the Marmara case doesn’t mean that Israel has overcome “lawfare” or pro-Palestinian attempts to blacken the state’s name in the court of public opinion.

Many international bodies sitting in judgment on what is going on in the Middle East are still heavily politicized and could (and will) do Israel much harm. The results of the UN Human Rights Council’s inquiry into this summer’s Gaza war will likely prove a case in point. But Thursday’s decision does show that taking the Israel for a ride in the ICC is not as simple as it may sometimes seem.

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