On May 31 2010, nine Turkish activists were killed on the Mavi Marmara flotilla as it attempted to breach an Israeli and Egyptian naval blockade of the Palestinian territory.
The activists, many from a pro-Palestinian Turkish group called the IHH, said they wanted to deliver aid to the Palestinian enclave by breaking Israel’s naval blockade, which Israel imposed after Hamas, a terror organization, came to power in Gaza.
Israeli authorities later found the vessel wasn’t carrying any humanitarian aid, and there were never any humanitarian supplies or equipment aboard the Mavi Marmara, indicating that the true aim of the group was to smuggle weapons to Hamas. That didn’t stop the IHH from filing a complaint against Israel at the International Criminal Court (ICC) in the wake of the clash.
Seven months ago, Chief Prosecutor Fatou Bensouda closed the file on the case, “concluding that the case would not be of “sufficient gravity” to justify further action by the ICC.”
Two weeks ago, the Pre-Trial Chamber of the ICC, for the first time in its history, ordered the ICC Prosecutor to pursue an investigation she has decided to close. The Chamber ruled that the Prosecutor was wrong to close the preliminary investigation into war crimes charges against Israel for crimes allegedly committed during the flotilla incident of 2010.
The ruling is shocking for a number of reasons, enumerated by Bar Ilan Legal Professor Avi Bell. Most remarkable is this:
“…most shockingly, it holds that crimes have sufficient gravity to interest the court, even if they have very few actual victims, as long as they are widely covered by the media, and are subject to a lot of political activity at the UN.
Needless to say, none of these holdings are accompanied by any citation to precedent. That’s because they are without any precedent.”
“The ICC, like altogether too many other international institutions that claim to protect law and justice, is just another political institution. And like all those other political international institutions, it is all too ready to fabricate new and uniquely harsh standards of “law” to apply only to the detriment of the Jewish state, and to fabricate facts to find the leaders and Jewish citizens of the Jewish state guilty of all manner of horrible crimes.”
Amazingly, on Monday, Bensouda appealed the ICC ruling that she must reconsider her previous decision not to investigate Israeli “war crimes” on the Marmara. She wrote that the judges’ decision altered the mandate she was given under the Rome Statute that established the ICC, and dramatically expands the scope of issues the court is meant to deal with.
Since the ICC seems to be making up the rules as it goes along, it is refreshing to see its Chief Prosecutor attempt to retain a fiber of legitimacy for the court. Considering that South Africa made a mockery of the ICC by refusing to honor the arrest warrant of one of the world’s worst war criminals last month, that’s not likely to happen.
We are waiting to see how this saga unfolds.