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ICC believes Israel may have committed war crimes in flotilla attack, but not of ‘sufficient gravity’ to justify formal investigation

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Yesterday, Mavi Marmara victims and Turkey’s IHH Humanitarian Relief Foundation President Bulent Yıldırım held a press conference in Istanbul announcing prosecutors at the International Criminal Court (ICC) had concluded that “Israel has committed a war crime” for the attack on board Mavi Marmara by the Israeli military on May 31, 2010.  The announcement specified the ICC would be making an official statement today.

Today, International Criminal Court Chief Prosecutor Fatou Bensouda announced the body will not be prosecuting Israel for the deadly attack on humanitarian passengers of the Mavi Marmara although she has reason to believe that war crimes were committed by Israel. In a statement Bensouda said the case is not “of ‘sufficient gravity’ to justify further action”:

Following a thorough legal and factual analysis of the information available, I have concluded that there is a reasonable basis to believe that war crimes under the jurisdiction of the International Criminal Court were committed on one of the vessels, the Mavi Marmara, when Israeli Defense Forces intercepted the “Gaza Freedom Flotilla’’ on 31 May 2010.

However, 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 gravity requirement is an explicit legal criteria set by the Rome Statute.

We reported in May 2013 when the ICC’s Prosecution Office opened a preliminary investigation into the massacre that left 9 humanitarian activists dead and 56 others wounded. Israel also systematically and forcibly transferred humanitarian aid passengers across international boundaries to its own territory.

At that time Mavi Marmara victims and the lawyers on behalf of the Government of the Comoros Islands, a state party to the ICC and the flag state of Mavi Marmara, transmitted a referral to Chief Prosecutor Bensouda with respect to the attack pursuant Articles 12, 13 and 14 of the Rome Statute.

At yesterday’s news conference IHH President Yıldırım said his organization would be objecting to the court’s decision and will use the statements of the Chief Prosecutor to further their case.

Anadolu News International Court: Israel guilty of ‘war crimes’:

“UN and Amnesty International have already stated that the Israel attacks were war crimes,” Yildirim said, adding that the International Criminal Court passed the case on to national courts because the number of deaths in the incident was too low for the scope of the international tribunal.

Yildirim said his organization will object to the court’s position on this subject.

All the statements of the prosecutors will “also be used to defend the rights of thousands of civilians in Gaza killed by Israel,” Yildirim, the presdident of the foundation, said.

Relatives of the Mavi Marmara victims were present at Wednesday’s press conference, including 26-year-old Ismail Bilgen, who lost his father in May 2010.

“I feel honored that my father was killed when he was defending Palestinian rights,” he told the Anadolu Agency, with tears in his eyes.

The prosecutors’ statements were steps towards victory against Israel, Bilgen said. “We will maintain our belief that no normalisation can be achieved with Israel until they are punished for what they did.”

Bilgen said he very much wanted to join in the next Mavi Marmara aid ship, which, according to the foundation president, is almost ready for a new convoy to Gaza.

Here is International Criminal Court Chief Prosecutor Fatou Bensouda’s Full statement:

On 14 May 2013, a referral was received by my Office from the authorities of the Union of the Comoros, a State Party to the Rome Statute. The same day, I announced the opening of a preliminary examination “with respect to the 31 May 2010 Israeli raid on the Humanitarian Aid Flotilla bound for [the] Gaza Strip.’’

Following a thorough legal and factual analysis of the information available, I have concluded that there is a reasonable basis to believe that war crimes under the jurisdiction of the International Criminal Court were committed on one of the vessels, the Mavi Marmara, when Israeli Defense Forces intercepted the “Gaza Freedom Flotilla’’ on 31 May 2010.

However, 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 gravity requirement is an explicit legal criteria set by the Rome Statute.

Without in any way minimizing the impact of the alleged crimes on the victims and their families, I have to be guided by the Rome Statute, in accordance with which the ICC shall prioritize war crimes committed on a large scale or pursuant to a plan or policy.

In the final analysis, I have, therefore, concluded that the legal requirements under the Rome Statute to open an investigation have not been met and I am announcing that the preliminary examination has been closed.

My Office’s assessment of the situation referred by the Comoros was based on open and other reliable sources, which we subjected to our strict practice of independent, impartial and thorough analysis

Under the Rome Statute, the referring State, in this case, the Union of the Comoros, has the right to request the Judges of the ICC to review my decision not to proceed to open an investigation, pursuant to article 53(3)(a) of the Statute.

I have made it clear in the past and I will repeat it here: my Office will execute its mandate, without fear or favour, where the Court’s jurisdiction is established; and will vigorously pursue those – irrespective of status or affiliation – who commit mass crimes that shock the conscience of humanity. We will do so with unyielding commitment to end impunity for mass crimes and in total independence, but we can only do so in strict conformity with the Rome Statute legal framework.

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The only agency that didn’t accept the US’ marching orders was UNESCO and it’s paying dearly for it now. Although the ICC is not UN-related, there are still some strings attached, along with the usual marching orders. There’s something screwy in the ICC’s statement that said that what Israel did was a war crime, but not serious enough to be prosecuted! Maybe the number of people killed by Israel is not enough to make the… Read more »

as I said here the other day: “Power and the Prosecutor of the ICC (Bensouda preceded by Ocampo) are quite similar, you know. They only call out crimes on the African continent.” How many deaths are ‘enough’ for Bensouda??? The ICC is a sham. “However, 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… Read more »

Meanwhile, in other, happier news, Ms. Bensouda has announced that she is half pregnant.

Really? So this what it all boils down to, ICC believes Israel committed war crimes against the Mavi Maara, but hey, let them get away with murder. Are they so inept, that they cannot pursue this, and hold Israel accountable, or is it that hard to gather the obvious evidence, witnesses who could testify first hand, and the records? What is wrong with this picture? Many unarmed civilians were slaughtered aboard a flotilla OVER international… Read more »

Does anyone have any concrete and particular facts about what pressure may have been brought to bear on Fatou Bensouda in this case? What is her background?

Here is her Wikipedia page:

http://en.wikipedia.org/wiki/Fatou_Bensouda