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ICC rules prosecutor to reconsider ‘Mavi Marmara’ investigation

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In a 2-1 decision, judges of the International Criminal Court (ICC) ruled that Prosecutor Fatou Bensouda committed “material errors” in her “Decision Not to Investigate” war crimes complaints concerning the murderous Israeli 2010 raid on the Mavi Marmara, killing 9 humanitarian aid workers in May 2010, and ordered her to reconsider her decision as soon as possible.

Previously, in concluding her preliminary examination, Bensouda stated last November there was a basis to believe “war crimes under the jurisdiction of the International Criminal Court were committed” but that they would not be of “sufficient gravity” to justify further action by the ICC.

On the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation, yesterday’s ICC judges’ ruling stated:

2. […] The Prosecutor determined that there was reasonable basis to believe that the war crimes of wilful killing under article 8(2)(a)(i), wilfully causing serious injury to body and health under article 8(2)(a)(iii), committing outrages upon personal dignity under article 8(2)(b)(xxi), and, if the blockade of Gaza by Israel is to be deemed unlawful, also intentionally directing an attack against civilian objects under article 8(2)(b)(ii) of the Rome Statute (the “Statute”) have been committed in the context of the referred situation.

Continuing:

18. By articulating in the Decision Not to Investigate a principle without basis in the law, the Prosecutor committed an error. However, the Chamber observes that the Prosecutor did not in fact apply the principle she announced, and did take into account certain facts “outside of the Court’s jurisdiction” for the purposes of her analysis under article 53(1) of the Statute, such as for her conclusion that crimes were committed only on the Mavi Marmara and that no serious injuries occurred on the other vessels in the flotilla (para. 138), or for her conclusion that the identified crimes had no significant impact on the population in Gaza (para. 141).

19. Therefore, the Chamber is of the view that the articulation of the erroneous abstract principle did not, as such, affect the validity of the Prosecutor’s assessment of gravity. The various factors considered by the Prosecutor in the context of her assessment of gravity need to be examined individually.

The Jerusalem Post reports this is a “shocking” decision of the court and positions the court as “closest it has ever been to intervening directly in the Israeli-Arab conflict”

Using harsh language, the ICC told Bensouda she should have considered more seriously the possibility that the deaths of those killed by the IDF in the incident were “systematic or resulted from a deliberate plan or policy to attack, kill or injure civilians.”

The decision puts the ICC the closest it has ever been to intervening directly in the Israeli-Arab conflict and places the court in the position of potentially being harsher on Israel than Bensouda, who herself has been criticized by Israel for recognizing a State of Palestine…

Bensouda very well may close the file again, but the court’s order means there is a very serious chance Israelis will face a full criminal investigation – something that has not yet occurred even regarding the 2014 Gaza war, Operation Protective Edge.

Article 46 of the Rome Statute and the Rules of Procedure and Evidence Article 24 require that a Judge or Prosecutor be removed from office for a “serious breach of duty” if either Repeatedly causes unwarranted delay in the initiation, prosecution or trial of cases, or in the exercise of judicial powers.“*

A “very serious chance Israelis will face a full criminal investigation”. That sounds very promising. Coming on the heels of the Iran Deal, this is shaping into a promising week indeed.

Predictably Netanyahu and others are freaking out.

 * Thanks to Hostage, for his contribution to this report

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Hallelujah! “Evidence Article 24 require that a Judge or Prosecutor be removed from office for a “serious breach of duty” if either “Repeatedly causes unwarranted delay in the initiation, prosecution or trial of cases, or in the exercise of judicial powers.“* A “very serious chance Israelis will face a full criminal investigation”. That sounds very promising. Coming on the heels of the Iran Deal, this is shaping into a promising week indeed.” Thanks so much… Read more »

Ali Abunimah has an article up on this as well. I had not heard/read about this: “… Pursuit of justice Separately, last month, a Spanish judge urged his country’s government to pursue the cases of three Spanish citizens who were aboard the Mavi Marmara at the ICC. Judge Jose de la Mata was forced to close his investigation due to laws passed in 2014 limiting the ability of Spanish magistrates to pursue international cases. The… Read more »

Kevin Jon Heller at Opinio Juris in his analysis of the importance of the ‘gravity’ of the war crime in question, gives a hypothetical situation whereby a group of the lowest-ranking soldiers from State X executes, against the stated wishes of their commanders, 10 civilians from State Y. The OTP would conclude that the “potential perpetrator” gravity factor militates against opening a formal investigation in State Y, because the crime in question, though terrible, did… Read more »

WOW! great news and brilliant reporting annie. Pretty strong statement from the Judges in calling it a “material error” which, if I’m not mistaken means a type of (material) error that if corrected changes the final decision or outcome – and in this case changes it to prosecutable. On a side note ( a little belated but), I wanted to congratulate you on your radio interview ( few weeks back) with the great Scott Horton… Read more »

Thank you annie.