Is the ICC going to prosecute Israelis for the assault

on the Mavi Marmara?

On 31 May 2010, Israeli forces mounted a military assault on the Mavi Marmara, a ship taking part in a humanitarian aid convoy to Gaza. The assault took place in international waters and resulted in the deaths of 9 civilian passengers; a 10^th died of his injuries after four years in a coma. All of them were Turkish citizens; one of them also held American citizenship.

Union of Comoros refers Israeli assault to ICC

On 14 May 2013, the Union of the Comoros, which is a state party to the Rome Statute of the International Criminal Court (ICC), referred the Israeli military assault on the Mavi Marmara to the ICC Prosecutor, Fatou Bensouda. This was possible because the Mavi Marmara was registered in the Comoros Islands and under Article 12.2(a) of the Rome Statute, the ICC has jurisdiction, not just in the territory of a state party, but also on ships or aircraft registered in a state party.

However, in November 2014, Mrs Bensouda refused to open an investigation, despite concluding that

“there is a reasonable basis to believe that war crimes under the jurisdiction of the International Criminal Court … were committed on one of the vessels, the Mavi Marmara, when Israeli Defense Forces intercepted the ‘Gaza Freedom Flotilla’ on 31 May 2010”.

Nevertheless, she decided that “the potential case(s) likely arising from an investigation into this incident would not be of ‘sufficient gravity’ to justify further action by the ICC”.

It is true that Article 17.1(d) of the Rome Statute requires a case to be “of sufficient gravity to justify further action by the Court”. But it was the first time in the history of the ICC that a referral by a state party to the ICC Prosecutor was rejected without an investigation being initiated.

Union of the Comoros applies for review

On 29 January 2015, the Union of the Comoros applied to the ICC for a review of the Prosecutor's decision and on 16 July 2015 the ICC Pre-Trial Chamber upheld the application and requested the Prosecutor to reconsider her decision not to initiate an investigation.

In their conclusion, the judges asserted that the Prosecutor made a series of errors in assessing the gravity of potential cases if an investigation were carried out and urged her to reconsider her decision not to launch an investigation “as soon as possible”.

Despite these critical words from the judges, Ms Bensouda mounted an appeal against this request to reconsider, but her appeal was rejected by the ICC Appeals Chamber on 6 November 2015.

Will there be a full investigation?

Does this mean that the Prosecutor is now obliged to launch a full investigation? Apparently not: all she has to do is to “reconsider” her previous decision not to do so.

A full investigation could lead to the indictment for war crimes of Israeli individuals who carried out the operation or who ordered the carrying out of the operation. But that is a long way off.

(Mrs Bensouda is also in the process of deciding whether to launch a full investigation into crimes within the jurisdiction of the ICC committed in the occupied Palestinian territory since 13 June 2014. She began a preliminary investigation on 16 January 2015 in response to a declaration by the Palestinian authorities on 1 January 2015 accepting the jurisdiction of the ICC from 13 June 2014. Nearly a year later, however, she has yet to make a decision on whether to launch a full investigation, which might lead to indictments.)

Even if individuals are indicted, it’s unlikely that they will ever face trial in the ICC at The Hague, since the ICC cannot try people in absentia – and Israel has no obligation to hand over people to the ICC for trial, since it is not a party to the ICC. However, indicted individuals would have to avoid travelling to states that are parties to the ICC lest they be arrested and handed over to the ICC in The Hague.

UN Human Rights Council inquiry

The UN Human Rights Council has also held an inquiry into the Israeli assault on the Mavi Marmara and the other ships in the flotilla to Gaza. In June 2010, it set up an international fact-finding Mission.

It reported in September 2010 and found that “the conduct of the Israeli military and other personnel towards the flotilla passengers was not only disproportionate to the occasion but demonstrated levels of totally unnecessary and incredible violence”.

It concluded that there was “clear evidence to support prosecutions of the following crimes within the terms of article 147 of the Fourth Geneva Convention, namely, wilful killing, torture or inhuman treatment and wilfully causing great suffering or serious injury to body or health”.

David Morrison

18 November 2015