According to lawyers, the court’s decision confirms that Israel has a ‘special status’ in regards to international law.
International Criminal Court (ICC) lawyers believe that Israel is guilty of “war crimes” for the raid on an aid ship bound for Gaza in 2010 that killed nine Turkish activists. However, they have also decided that the case does not meet their criteria for prosecution, according to court papers seen by Reuters on Wednesday.
On May 31, 2010, the Israeli military forcefully boarded six civilian ships from the “Gaza Freedom Flotilla” that were traveling from Turkey to deliver humanitarian aid and construction materials to the besieged region. The army boarded the ships in international waters in the Mediterranean Sea.
The activists on board say they did not put up a fight, however the Israeli army insists that they were met with resistance – which led to several activists being killed, including eight Turkish nationals and an American of Turkish origin on the Mavi Marmara boat.
The ICC does not have jurisdiction over crimes committed in either Turkey, where most the boats were registered, or Israel, since neither are members of the ICC. However, the Mavi Marmara was registered to the Comoros Islands, which is a member, making the crimes on board eligible for ICC investigation.
“The information available provides a reasonable basis to believe that war crimes under the Court’s jurisdiction have been committed in the context of interception and takeover of the Mavi Marmara by IDF (Israeli Defense Forces) soldiers on 31 May 2010,” read the papers.
But the papers also added that prosecutors had decided the crimes “were not of sufficient gravity to fall under the court’s jurisdiction,” reported Reuters. Their evidence and criteria for making this decision however, remained vague.
“Not having collected evidence itself, the Office’s analysis in this report must therefore not be considered to be the result of an investigation,” the paper read.
However, according to the ICC website, considering individuals guilty of war crimes does make them eligible to be tried under the ICC.
“The mandate of the Court is to try individuals rather than States, and to hold such persons accountable for the most serious crimes of concern to the international community as a whole, namely the crime of genocide, war crimes, crimes against humanity, and the crime of aggression…”
The Indian Ocean State, another ICC member, referred the raid to court, which obligated the ICC to begin preliminary examinations into the matter, according to their mandate.
“The Prosecutor’s decision marks the first time a State referral by an ICC States Party has ever been rejected by … Prosecutor without even initiating an investigation,” said lawyers Rodney Dixon and Geoffrey Nice in a statement.
“It confirms the view expressed by politicians, civil society organizations, NGOs and commentators from many quarters that Israel has a ‘special status,'” they added.
The report comes the same day that Bulent Yildirim, president of the Turkish NGO Humanitarian Relief Foundation (IHH) – one of the NGOs who organized the flotilla – praised the ICC, expecting that they would announce on Thursday that Israel is guilty of “war crimes.”
The ICC’s final decision is likely to anger other Turkish activists, but also Ankara who accused Israel of mass murder after the IDF attacked the flotilla.