The Prosecutor of the International Criminal Court in The Hague has declined to open a formal investigation into the Israeli attack on the Mavi Marmara on May 31, 2010. Despite declining to investigate on the ground of “gravity”, the ICC Prosecutor, Fatou Bensouda, recognises that the conduct of the Israeli forces constitutes war crimes and that characterises the situation in Gaza as an international armed conflict.
It is clear that this decision is likely to anger the government of Israel further as despite its insistence that it is not occupying Gaza, the ICC Prosecutor disagrees and sets out the reasoning in her decision.
It is, of course, disappointing for those seeking accountability for the Gaza Flotilla attack, but they will take some comfort in the decision only being grounded on the number of victims, not the conduct of the Israeli authorities as an occupying force.
It is also quite clear that the ICC Prosecutor is setting the ground for the Palestinian Authority to ratify the Rome Statute of the ICC as whilst the number of victims in the Gaza Flotilla attack may be too few to justify an international investigation, the number of civilian casualties during Operation Protection Edge is well over 2,000.
Let’s recall the details of the Gaza Flotilla attack. On May 31, 2010, a group of ships attempted to reach the Gaza Strip but were prevented from reaching their destination when members of the Israeli military attacked them in international waters. Nine people were left dead and scores seriously injured. It is clear – and this is confirmed by the ICC Prosecutor – that these acts constitute crimes under international law. To this day, the Israeli government has not been held accountable. The day is perhaps now synonymous with the Israel/Palestinian conflict.
The “Gaza Freedom Flotilla” was a group of six ships organised by six organisations. The aim of the flotilla was essentially threefold: to deliver humanitarian aid and construction materials; to break the blockade of Gaza; and to focus the world’s attention on that blockade.
Whilst in international waters, approximately 130km off the coast of Israel, the ships were boarded by at least 13 Israeli Naval Commandos from both speedboat and helicopter. The Mavi Marmara was the largest and lead ship in the flotilla, during the subsequent confrontation, the soldiers aboard the ship MC Mavi Marmara killed nine activists, and a significant number of others injured, some seriously. The argument raised by the Israeli soldiers being that they had acted in self-defence. This does not explain how the majority of those killed were shot multiple times, including in the back, and at close range.
The incident was referred to the International Criminal Court (ICC) by the Comoros Islands, as the state where one of the ships involved was registered, thus allowing a referral to the Office of the Prosecutor (OTP) to be made – the Comoros Islands, unlike Turkey and Israel, have ratified the Rome Statute of the ICC.
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The ICC Prosecutor has now issued its decision, declining to investigate the incident on the basis of “gravity”. The decision is disappointing in that respect; however, the decision must also be seen in a positive light given the conclusions reached.
In the first instance, it finds that there is a reasonable basis to believe that members of the IDF committed war crimes. This finding in itself is a positive conclusion and can be effectively referred to in the case currently before the Istanbul High Court concerning the Mavi Marmara incident. Further, it can be referred to in any subsequent referral made to the ICC, should the Palestinian Authority become a State Party to the Rome Statute, as has been threatened should the UN Security Council fail to pass a forthcoming resolution demanding a retreat by Israel and an end to the blockade of Gaza amongst other demands.
The issue of the occupation of Gaza is where there is arguably the most important conclusion in the decision. The ICC Prosecutor, in her decision, concludes that Israel is still an occupying force in Gaza. The reasoning is based upon the fact that it exercises complete control over border crossings, the airspace, and the sea. It enforces no-go areas within Gaza near the border, and it regulates the local monetary market based on the Israeli currency and control of taxes and customs duty.
It is accepted that militarily, the IDF disengaged in 2005, however the argument put forward by Israel that it is not an occupying force is simply incredible and is rejected by the ICC Prosecutor. It is of significant importance that what has been argued by relevant members of the international community now has the backing of the ICC Prosecutor.
This is of particular importance when considering that a further referral may be made should the Palestinian Authority ratify the Rome Statute and refer the numerous allegations arising out of Operation Protective Edge. Whilst the Gaza Flotilla incident may fall outside of the ICC’s jurisdiction as having occurred before the ratification, the findings as to occupation will undoubtedly support a thorough investigation into the 50-day incursion.
Israel is likely to react negatively to the decision given it consistently maintains that firstly, the IDF acted in self-defence on the Mavi Marmara, and secondly, that they are no longer an occupying force.
Israel is likely to react negatively to the decision given it consistently maintains that firstly, the IDF acted in self-defence on the Mavi Marmara, and secondly, that they are no longer an occupying force. Israel, however, must accept that international law is not on their side. It had no justification for its actions on the Mavi Marmara; it had no justification for its actions during Operation Protective Edge; and, it is deliberately enforcing subjugation of the Palestinian people by virtue of its blockade, and therefore its occupation.
There is a need for accountability; Israel has for too long failed to answer for its occupation of Gaza.
Whether the Israeli authorities will be forced to answer at the ICC remains to be seen, and does appear to be wholly dependent on the forthcoming UN resolution, which the US is anticipated to veto given its steadfast support of Israel. However, if the resolution is not passed, Mahmood Abbas must carry through with his promise and ratify the Rome Statute. Justice has eluded the Palestinian people for too long, and likewise, Israel has been allowed to act with impunity for too long.
The case of the Mavi Marmara may not be heard at an international court. However, the ruling is of significant importance and further supports the argument that the status quo cannot be maintained.
The wind of change may finally be gathering speed.
Toby Cadman is an international criminal law specialist. He is a barrister member at Nine Bedford Row International Chambers in London and a member of the International Criminal Bureau in The Hague.