THE HAGUE (CN) — The International Criminal Court prosecutor has declined to pursue charges in the Gaza Freedom Flotilla case, in which Israeli commandos killed 10 humanitarian aid workers in 2010.
“There remains no reasonable basis to proceed with an investigation, since there is no reasonable basis to conclude that any potential case arising from the situation would be of sufficient gravity to be admissible before the Court,” International Criminal Court prosecutor Fatou Bensouda wrote in a brief this week.
Bensouda decided in 2014 not to bring charges against Israel for its role in the deaths of the aid workers attempting to bring relief to Palestinians in the Gaza Strip, but the Appeals Chamber ordered her to reconsider her decision this year.
The Union of the Comoros, which brought the complaint, requested a review of the decision not to pursue charges in 2015.
Israel is not a party to the 2002 Rome Statute that created the court, but the relief ship that Israel attacked, the Mavi Marmara was registered in the Union of the Comoros, an island nation off the coast of Mozambique, which is a signatory.
“This is fundamentally a dispute between the judges and the prosecutor,” said Kevin Jon Heller, an associate professor of public international law at the University of Amsterdam.
At the International Criminal Court, cases are brought at the discretion of the prosecutor. If the prosecutor declines to bring a case, both parties and states can appeal. In that case, the Appeals Chamber, which consists of the president of the court and four other judges, can request that the prosecutor reconsider.
Bensouda’s office has the final say in the decision.
After the 2007 Hamas takeover of the Gaza Strip, Israel and Egypt blockaded the self-governing Palestinian territory, including a naval blockade of the territory’s Mediterranean coast.
Nongovernmental organizations organized the Gaza Freedom Flotilla to bring humanitarian aid to the 140 square-mile strip of land.
Six of the flotilla’s ships were boarded by the Israeli military. Ten activists of the 600 aboard the flagship, the Mavi Marmara, were killed when Israeli commandos rappelled onto the ship by helicopter. Israel claims they were attacked by the activists, while those aboard the vessel say the shooting began as soon as the commandos landed on the ship.
After her preliminary investigation, Fatou Bensouda said in a statement: “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 gravity requirement is an explicit legal criteria set by the Rome Statute.”
Marco Longobardo, a lecturer in international law at the University of Westminster in the United Kingdom, said, “The concept of sufficient gravity is not defined but it is referenced in the Rome Statute as one of the criteria for bringing cases.” The concept was included in the treaty to ensure that the ICC would not get involved in minor cases.
There is no further avenue for appeal.