In May 2013, the International Criminal Court (ICC) opened a case against Israel. Three years earlier, Israeli soldiers had boarded the Mavi Marmara, part of the infamous Freedom Flotilla, in an effort to uphold Israel’s blockade of Gaza. The soldiers met violent resistance – activists on board wielded knives, catapults and metal piping cut from the ship’s railings. The ensuing melee led to the death of nine activists (another died years later), while as many as 10 Israeli soldiers were injured. The tiny island nation of the Comoros, under whose flag the Mavi Marmara sailed, asked the ICC to investigate.
A year and a half later, in November 2014, the court’s chief prosecutor, Fatou Bensouda, returned with her decision, arguing that there was “no reasonable basis to proceed with an investigation.” Israel’s alleged crimes, she concluded, were not serious enough for the ICC to consider prosecuting. The Comoros quickly appealed, while Bensouda asked the court to dismiss the case. The ICC’s pre-trial chamber decided against its colleague, requiring Bensouda to reconsider her conclusion, and accusing her of committing “material errors” in her investigation. Bensouda appealed that decision, too, to no avail. She was ordered to review the case again.
Released Nov. 29, 2017, Bensouda’s second ruling reiterated what she had already said – that she “remains of the view that there is no reasonable basis to proceed with an investigation.” The preliminary examination, she added, “must be closed.” Muslim-majority Comoros soon sent an application to the ICC’s Appeals Chamber for another review, citing what it claimed were “discernable errors” on Bensouda’s part. Once again, Bensouda fought back, arguing that the Appeals Chamber did not have jurisdiction to rule on the case.
But last week, the ICC ruled against Bensouda again, ordering her to look into the case – for a third time. The prosecutor’s November 2017 judgment, what Bensouda considered her “final decision,” could not, in fact, “be considered to be final,” the court said. Bensouda now has until May 15, 2019, to present her new final decision.
Bensouda’s original judgment was in line with other significant investigations of the Mavi Marmara incident. In 2011, a United Nations report found that Israel’s blockade was both legal and appropriate, and that the Israeli soldiers who boarded the ship faced “organized and violent resistance from a group of passengers,” though the report also argued that the IDF’s response was “excessive and unreasonable.” Israel’s own investigation into the incident, led by retired Supreme Court justice Jacob Turkel (and overseen, in part, by Canadian Ken Watkin, a former military judge), came to much the same conclusion. And in the intervening years, Israel has reconciled with Turkey, nine of whose citizens died aboard the Mavi Marmara.
Meanwhile, the ICC continues to beat its dead horse. It’s hard to imagine Bensouda’s third decision will be any different from her previous two, despite whatever chicanery is afoot – perhaps the court will force its prosecutor to review the case a fourth and fifth time if it does not get the result it desires. More than eight years after the Mavi Marmara incident, the world has moved on. Yet the ICC remains mired in the muck.