The International Criminal Court (ICC) has ordered the tribunal’s prosecutor to reconsider whether Israel should face charges over a deadly 2010 raid on a flotilla carrying aid to the besieged Gaza Strip.
In line with the decision of the appeals judges, prosecutor Fatou Bensouda will now examine once more whether to bring Israel before The Hague-based court.
“The prosecutor is directed to reconsider her decision by December 2, 2019,” presiding appeals judge Solomy Balungi Bossa told the court on Monday, adding that three out of five judges in the court’s appeals chamber had backed the move.
Bensouda said in 2014 that she would not prosecute Israel over the raid that killed 10 people, saying it was “not of sufficient gravity” – which means the case could be determined as inadmissible before the ICC.
Bensouda again affirmed the decision in 2017 after judges said she must take another look at the case.
International lawyer Diala Chehade told Al Jazeera that the concept of gravity within the text of the ICC has not been defined clearly enough in legal terms.
“There are currently no criteria that would set a final definition for the element of gravity for the ICC,” said Chehade, who is also the former legal outreach officer for the Arab region at the court.
“The office of the prosecutor argues that the crime was not sufficiently grave, although some evidence suggests that war crimes are committed by the Israeli soldiers during the incident,” she added
“The prosecutor’s office argue that the low number of people killed and injured in the incident is a factor for this decision,” Chehade continued. “They also highlighted, what they say, some act of aggression committed by the activists against the Israeli soldiers.”
Israeli commandos enforcing a naval blockade of the Gaza Strip killed eight Turkish citizens and one Turkish-American during the predawn raid in May 2010 on the Mavi Marmara ship, which led a flotilla towards the besieged coastal enclave. Several other pro-Palestinian activists were wounded, while a 10th person died later of his wounds.
The case was first filed by the Comoros, where the ship was registered, and there is no limit to the requests the chamber can make to the office of the prosecutor to reconsider a decision. Comoros is a party to the ICC.
Israel is not a member state of the court but its nationals could face charges if Bensouda opened an investigation.
In the years following the raid, Israel offered an apology over the incident, permission for Turkish aid to reach Gaza through Israeli ports, and a payout of $20m to the families of those killed.
Ties between Israel and Turkey crumbled after the raid but in 2016 the two countries said they would normalise relations.
The ICC was set up as a court of last resort intended to prosecute senior leaders allegedly responsible for grave crimes, including genocide, war crimes and crimes against humanity when national courts prove unable or unwilling to take on such cases.