THE HAGUE, Netherlands (CN) — The International Criminal Court prosecutor in The Hague on Monday was directed to reconsider her decision to not pursue charges in the Gaza Freedom Flotilla case.
Judge Reine Alapini-Gansou read the ruling aloud on behalf of the Appeal Chamber to a nearly empty courtroom. The ruling rejected prosecutor Fatou Bensouda’s assertion that the Flotilla case did not warrant a full investigation by the International Criminal Court, the United Nations body for war crimes prosecutions.
However, Alapini-Gansou ruled that the prosecutor is responsible for the “ultimate decision” on whether to pursue charges.
The legal debate is over whether the case has “sufficient gravity” to warrant an investigation by the court.
In 2007, after Hamas took control of the Gaza Strip, Israel and Egypt together began a blockade of the self-governing Palestinian territory. This included a naval blockade of territory’s Mediterranean Coast.
In response, the Free Gaza Movement and the Turkish Foundation for Human Rights and Freedoms and Humanitarian Relief (IHH), both NGOs focusing on the rights of Muslims, organized the Gaza Freedom Flotilla, to bring humanitarian aid to Gaza.
On May 31, 2010, six ships from the flotilla were boarded by the Israeli military. The flagship vessel, the Mavi Marmara, was registered in the Union of the Comoros, an island nation off the coast of Mozambique, Africa. Other ships in the flotilla were registered in Cambodia and Greece.
Ten activists of the 600 aboard the Mavi Marmara were killed when Israeli commandos rappelled onto the ship by helicopter. The Israeli military claims they were attacked by the activists, while those aboard the vessel say shooting began as soon as the military personnel landed on the ship.
A U.N. investigation of the incident was unable to determine when the shooting started but a 2010 UN Human Rights Council report found that Israel had committed “a grave violation of human rights law and international humanitarian law.” The incident was widely condemned by the international community and the aid was allowed to reach Gaza, under U.N. supervision, two weeks later.
Comoros is a party to the Rome Statute of the International Criminal Court, which in 1998 established four core international crimes: genocide, crimes against humanity, war crimes, and crimes of aggressions. One hundred twenty-two nations have adopted it. (China, Israel and the United States voted against it when it was adopted.) In 2013, Comoros requested that the ICC prosecutor investigate the incident.
After preliminary investigation, ICC prosecutor Fatou Bensouda said in a statement that while she felt there was “a reasonable basis to believe that war crimes” had been committed on the Mavi Marmara, “after carefully assessing all relevant considerations, I have concluded 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.”
The Pre-Trial Chamber, a three-judge panel at the court, granted a request by the Comoros to review the decision in 2015, finding that the prosecutor had “committed material errors in her determination of the gravity of the potential case.”
The prosecutor appealed, resulted in a years-long legal battle between the prosecutor and the chamber. Monday’s decision asked the prosecutor reevaluate her decision under a more limited scope of grounds for refusal.
“The concept of sufficient gravity is not defined but it is referenced in the Rome Statute as one of the criteria for bringing cases,” said Dr. Marco Longobardo, a lecturer in international law at the University of Westminster in the United Kingdom. The concept was included in the treaty to ensure that the ICC would not get involved in minor cases.
“We only have one ICC,” said Longobardo.
Israel is not a party to the Rome Statute but its citizens involved in the incident could be prosecuted if the case moves forward. The prosecutor has until Dec. 2 to reply to the order.