A 3-judge panel of the International Criminal Court in the Hague, in a 2-1 decision, on Thursday called on the court’s prosecutor Fatou Bensouda to reconsider her decision not to investigate the 2010 clash between Israeli soldiers and Turkish activists on a flotilla that was on its way to Gaza.

Last year, Bensouda refused a request, to launch a probe into the May 31, 2010 incident, submitted by the Union Comoros, an island nation in the Indian Ocean under whose flag the boarded flotilla boat, the Mavi Marmara, was sailing.

Eight Turks and one Turkish-American were killed and several other pro-Palestinian activists wounded by Israeli commandos, in a botched operation in which the Israelis climbed down a rope, one at a time, to receive severe beatings with metal rods from the activists.

At the time, Bensouda said there was a “reasonable basis to believe” war crimes had been committed on the Mavi Marmara, except she did not believe the case merited an ICC involvement. It appeared that in her view the ICC should use its authority to discern major international confrontations, rather than what amounts to a coast guard boarding gone awry.

On Thursday, the Judges rebuked Bensouda for making “material errors in her determination of the gravity” of the case.

Israel’s Turkel Commission probe of the incident, which, according to Ha’aretz, has met with the approval of the UN investigative committee (the Palmer Committee), found that:

a. The naval blockade imposed on the Gaza Strip – in view of the security circumstances and Israel’s efforts to comply with its humanitarian obligations – was legal pursuant to the rules of international law;

b. The actions carried out by Israel on May 31, 2010, to enforce the naval blockade had the regrettable consequences of the loss of human life and physical injuries. Nonetheless, and despite the limited number of uses of force for which we could not reach a conclusion, the actions taken were found to be legal pursuant to the rules of international law. The UN Palmer Committee Report on Gaza Flotilla Incident sided with the Israeli action. In its final summary, it stated:

The blockading power is entitled to board a neutral merchant vessel if there are reasonable grounds to suspect that it is breaching a blockade. The blockading power has the right to visit and search the vessel and to capture it if found in breach of a blockade.

Breach could occur outside the blockade zone, including on the high seas where there is evidence of the vessel’s intention. If there is clear resistance to the interception or capture, the blockading power may attack the vessel, after giving a prior warning.

The level of force used to enforce the above-mentioned rights must be proportionate; in particular, it must be limited to the level necessary to achieve the military objective.

So that, should the prosecutor decide to move ahead with the case, the entire debate would inevitably revolve around the proportionality of the IDF soldiers’ use of force.

Should make for an exciting kangaroo court.

JewishPress.com adds:

Judge Peter Kovacs has presented an opposing position to his peers in the ICC, which can be read here.

The key paragraph is the last paragraph where the judge wrote:

Indeed, it is likely that if an investigation was to be conducted most if not all of those acts will not qualify as war crimes within the meaning of article 8 of the Statute, either due to the difficulty in proving the mens rea of the potential suspect(s), or due to the existence of defences under articles 31 or 32 of the Statute (i.e., self-defence or justifiable error on the protected status of those on the Maria Marmara) with regard to the IDF soldiers who intervened in those difficult circumstances. It follows that the lack of prospect for any successful prosecution, together with the relatively low gravity of the alleged crimes makes it clear that the initiation of an investigation in the present situation is unwarranted.

Foreign Minister Avigdor Liberman has taken the first steps in hitting back at the ICC for its eagerness to try and prosecute Israel for fictitious war crimes.

Liberman said on Israel radio that Israel will ask Israel’s friends in Canada, Australia and Germany to stop funding the ICC. Israel and the US are not members of the ICC.

Japan’s Prime Minister is currently in Israel and Israel will also ask Japan to stop contributing to the ICC.

In the international community there is concern that the Palestinian Authority’s actions may destroy whatever credibility the ICC may have had. They’re right to be worried.

An Israeli civil rights group has filed a complaint in the International Criminal Court against Palestinian Authority chairman Mahmoud Abbas for war crimes in the Gaza war against Israel.

The Shurat HaDin (Israel Law Center) group said that Abbas can be tried in the court in Hague because he has Jordanian citizenship.

The Palestinian Authority is not as member of the ICC, but Abbas has threatened he will apply for membership. If the PA is accepted, he could file war crime suits against Israel.

“Shurat HaDin will not allow Fatah to carry out rocket attacks on Israeli population centers, while hypocritically advocating Palestinian membership in the ICC, said Shurat HaDin director Nitsana Darshan Leitner. “Abbas falsely believes that alleged crimes against Arabs are the only ones that should be prosecuted,” she added.

Darshan-Leitner argued that Abbas, as head of the Fatah movement, “is liable for Fatah’s rocket attacks on Israeli cities during this past summer’s Gaza war.”

Fatah boasted that it launched missiles towards numerous Israeli communities, including Ashkelon, Sderot, Netivot and kibbutzim in the Gaza Belt area.

Darshan-Leitner explained that Abbas’ Jordanian citizenship circumvents the previous obstacle to the ICC chief prosecutor’s argument that the court did not open an investigation into war cries in the war because neither Israel or the Palestinian Authority is a member of the ICC.

“Abbas is a Jordanian citizen and Jordan is a current member of the ICC,” she said, “The ICC is empowered to exercise its jurisdiction over all acts committed by the citizen of a member, wherever those acts are committed.”

The complaint notes Jordan has never prosecuted any Palestinian citizen for terrorism and it “has no means of obtaining custody of Mahmoud Abbas,” who lives in Ramallah under PA protection.

In September, Shurat HaDin filed an ICC complaint against Hamas leader Khaled Mashaal, who also possesses Jordanian citizenship, for Hamas’s extra-judicial execution of 39 Palestinian civilians in Gaza.

An Israeli civil rights group, Shurat HaDin Israel Law Center, has filed a complaint in the International Criminal Court (ICC) in the Hague against Hamas leader Khaled Mashaal over the July-August murders of 38 Gazan civilians.

The motion by the Shurat Hadin Israel Law Center to bring Mashaal to the ICC was made possible by the fact that he is a citizen of Jordan, one of the ICC member states, and represents the first time that a Palestinian terrorist would be brought to the court on the basis of his Jordanian citizenship.

The complaint alleges that Hamas executed 20 Gazan civilians on July 28 for engaging in anti-Hamas protests, and publicly executed at least 18 civilians on August 22 for “collaboration” with Israel. The complaint further states that Mashaal “had knowledge of the executions, oversees Hamas’s governance of Gaza, and actively encourages and supports the executions.”

As a Jordanian citizen, the Hamas leader is subject to prosecution by the ICC because court is “empowered to exercise its jurisdiction over all acts committed by the citizen of a member, wherever those acts are committed,” explained attorney Nitsana Darshan-Leitner, the chairperson of Shurat Hadin.

In video footage broadcast around the world, Hamas spokesmen testified to the killings of at least 38 civilians in Gaza since the outbreak of this summer’s war with Israel. One of the videos shows Hamas executioners publicly announcing the verdict against some of the condemned civilians, who appear kneeling with cloth bags over their heads in a Gaza mosque. The executions brought widespread condemnation of Hamas from a number of human rights groups.

The Israeli legal group filed the complaint partly as a response to statements made last week by ICC Chief Prosecutor Fatou Bensouda, who said that the court has not “avoided opening an investigation into alleged war crimes in Gaza due to political pressure” and has only failed to do so due to a lack of jurisdiction. According to ICC protocols, either the claimant or defendant in a case must belong to an ICC member state, a status that neither Israel nor Gaza holds. By trying Mashaal as a Jordanian, the Israeli group hopes to force the court to convene on the case, as Bensouda indicated it would be willing to do.

Darshan-Leitner told Tazpit News Agency that if the case against Mashaal succeeds in going to court, the results would be significant for Israel. The Hamas leader would be arrested and put on trial, and as the attorney pointed out, “the punishment for war crimes is imprisonment for life. It’s a life sentence without parole.” She also noted that a successful trial would undermine the legitimacy of Hamas, who would be “recognized as committing war crimes against its own people.”

Asked about the prospects of the case going to trial, Darshan-Leitner said that she intends to “put public pressure on the court to deal with this issue.” She noted that the court has an incentive to take the case in order to avoid appearing hypocritical, since the chief ICC prosecutor herself wrote that the court is willing to deal with allegations against Hamas.

“Quite frankly,” she said, “I don’t see a way out for the court from dealing with this case. For the first time they have the jurisdiction to deal with Hamas war crimes in Gaza.”

The Fatah-led Ramallah-based Palestinian Authority Unity Government is heading to The Hague today to attempt to file suit against Israel in the International Criminal Court.

The PUG (PA), led by PLO Chairman Mahmoud Abbas, is hoping to charge Israel with war crimes over its counter terror Operation Protective Edge in Gaza.

It is likely the lawsuit will have little effect even if it is accepted by the Court, however; Israel is not a member of the ICC, which therefore has no jurisdiction over the Jewish State.

The Palestinian Arab entity was represented in The Hague by its foreign minister, Riad al-Maliki, according to Reuters.

French foreign minister Laurent Fabius told BFM-TV today that “if it is proven, France’s position is that there must be a reaction, a reaction that could take the form of a reaction with force.”

He added that “there are possibilities for responding,” but refused to elaborate. He did state that if the UN Security Council could not make a decision, one would have to be taken “in other ways.”

Syrian government officials said the claims of an army chemical weapons attack on its own civilians were “totally false” and the news outlets reporting those claims were “implicated in the shedding of Syrian blood and support terrorism.”

Turkey’s deputy prime minister has said only the Syrian government is in possession of the type of chemical weapons the opposition claims were used in the attack. Turkey’s foreign minister said “all red lines” have been crossed by the Assad regime.

But Iran has rejected the claims that its ally, President Bashar Assad, had deployed chemical weapons, saying the rebels would be responsible, if such an attack had really taken place.

“If the information concerning the use of chemical weapons is accurate, very definitely they were used by terrorist groups… who have shown they will not hold back from committing any crime,” Iran’s foreign minister Mohammad Javad Zarif said to the IRNA news, referring to the rebels.

British Foreign Secretary William Hague urged international supporters of the Syrian regime to “wake up to … its murderous and barbaric nature” ahead of the UN meeting, Sky News reported.

But Russia, the traditional supporter of the Assad regime, suggested the attack could be a “premeditated provocation” by opposition forces.

Officials from Russia and China are reported to have blocked a stronger press statement supported by Britain, France, the US and others, Sky News reported.

Earlier, Mr Hague said that if verified, the attack “would mark a shocking escalation in the use of chemical weapons in Syria”.

He added: “Those who order the use of chemical weapons, and those who use them, should be in no doubt that we will work in every way we can to hold them to account.”