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.
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.