The killing of nine Gaza Freedom Flotilla protesters in 2010 by Israeli forces lacked “sufficient gravity” to come under its jurisdiction, the ICC said, adding that there was reason to suspect war crimes were committed.
“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,’” the International Criminal Court’s (ICC) chief prosecutor Fatou B. Bensouda said in a statement.
However Bensouda ruled in the 61-page report that any cases relating to the incident, which brought Israeli-Turkish relations to a historic low, “would not be of sufficient gravity to justify further action by the ICC.”
The Israeli raid on Gaza Freedom Flotilla in international waters on May 31, 2010, killed eight Turkish nationals and an American of Turkish origin as the vessels tried to penetrate the Israeli blockade on Gaza maintained since 2007.
The lawsuit against the state of Israel was filed in The Hague three years later on behalf of Turkey’s Humanitarian Aid Foundation (IHH) and the victim’s families, with an authorization from Comoros Islands in which the raided vessel, the Mavi Marmara, was registered.
A lawyer representing Comoros pledged not to quit the case.
“This is a moral struggle that we’re pursuing by ourselves. It’s a legal struggle; a struggle in the name of humanity. This struggle isn’t over,” said Ramazan Ariturk, as quoted by AP. “We will object to a higher court at the International Criminal Court and we believe without a doubt that we will prevail.”
Article 12(2) of the Rome Statute stipulates that the court’s jurisdiction extends to crimes committed on board a vessel or aircraft of a member state and its territory. Turkey, Israel and Palestine are not members of the ICC.
Israeli lawyer Nick Kaufman thus claimed that Mavi Marmara was deliberately reflagged just before the flotilla set sail, to exploit a jurisdictional vehicle for the “continuing and obsessive ‘lawfare’ against Israel at the ICC.”
A 2011 UN report found that the raid was justified, but that Israel had used “excessive force.”
Representatives of the Comoros government, meanwhile, are planning to apply for a review of the decision, which “marks the first time a state referral by an ICC States Party has ever been rejected by … prosecutors without even initiating an investigation.”
“It confirms the view expressed by politicians, civil society organizations, NGOs and commentators from many quarters that Israel has a ‘special status,'” said lawyers Rodney Dixon and Geoffrey Nice.
The 2010 atrocity caused international condemnation and severely damaged Turkish-Israeli relations. Three years after the raid, in March 2013, Turkey received an official apology from Israel over the incident.
In 2012, the ICC declined Palestine’s bid for an investigation into the 2008-09 Israeli military offensive on the Gaza strip on the basis that Palestine was not a recognized state at the time.