ICC Panel Orders Prosecutor to Reconsider Probe of Israel Over Gaza Flotilla Raid

Appeal comes after prosecutor closed case, saying there were no grounds for a criminal investigation into the 2010 incident in which Israeli soldiers killed ten members of a flotilla.

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Israel Navy forces approaching the Mavi Marmara bound for Gaza, May 31, 2010.
Israel Navy forces approaching the Mavi Marmara bound for Gaza, May 31, 2010.Credit: Reuters

A special panel of the International Criminal Court in The Hague ordered the court’s prosecutor on Thursday to reconsider her decision not to launch a criminal probe into Israel’s interception of a Turkish-sponsored flotilla to Gaza in May 2010.

Ten passengers, eight of them Turkish nationals, were killed in a clash with Israeli soldiers who boarded the flotilla’s lead ship, the Mavi Marmara.

The original complaint was submitted to the court in May 2013 by the Comoros Islands, as the Mavi Marmara was sailing under its flag. In November 2014, prosecutor Fatou Bensouda decided to close her preliminary investigation into the incident, saying there were no grounds for a full-fledged criminal probe.

But on January 29, Comoros appealed this decision to a special pre-trial panel of the court. Its appeal was joined by families of the Turks who were killed in the raid.

On Thursday, following a few months of deliberations, the judges ruled that Bensouda should reconsider her decision, saying it suffered from “material errors.” In particular, they said, Bensouda erred in concluding that it would be hard to indict the parties who probably bore most responsibility for any crimes committed during the raid. They said she also erred in concluding that the scale, severity and impact of the alleged crimes did not suffice to justify an ICC investigation.

A statement released by the ICC said the panel asked Bensouda to reconsider her decision “as soon as possible” and inform the panel, the Comoros Islands and the families of her new decision.

Prime Minister Benjamin Netanyahu slammed the ICC, calling it hypocritical. "Israel Defense Forces soldiers acted in self defense when they stopped an attempt to break the naval blockade, which was implemented in keeping with international law as determined by a committee appointed by the UN Secretary General, a committee headed by a Supreme Court justice and international observers," he said.

"At a time when in Syria Assad is butchering multitudes of his people, and in Iran hundreds are being executed, and in Gaza Hamas uses children as human shields, the court chooses to occupy itself with Israel out of cynical, political considerations. In the face of this hypocrisy, our soldiers will continue to safeguard us and we will protect them in the international arena.

Israel’s Foreign Ministry issued a furious condemnation of the court’s decision.

“This is an incident in which Israel acted in self-defense and in accordance with international law,” it said in a statement. “The incident was investigated by a commission headed by an Israeli Supreme Court justice that included the participation of international observers, and also by a commission set up by the UN secretary-general, both of which confirmed this.

“It’s not clear why the court insists on devoting its resources to dealing excessively with complaints that stem from cynical political motives instead of dealing with what it was established for – the investigation of mass atrocities,” the statement continued. “Israel expects the prosecutor’s decision to remain as it is.”

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