On Monday, appeal judges of the International Criminal Court ordered the tribunal’s prosecutor to reconsider whether Israel should face charges over the 2010 attack on an aid flotilla in route to the naval blockaded Gaza Strip. Mavi Marmara, one of the six ships of the small fleet, was stormed by Israeli commandos enforcing the blockade who went on to kill eight Turkish citizens and one Turkish-American on-board in the predawn hours.
Fatou Bensouda, the chief prosecutor of the ICC, is forced to re-examine for a second time whether a formal investigation should be opened. She was first asked to review the 2010 raid in 2017 when, according to Al Jazeera, she dismissed the case because the death of nine people lacked the “sufficient gravity” to move forward, lest the case be made inadmissible in court.
The former ICC legal outreach officer for the Arab region, Diala Chehade, told Al Jazeera, “There are currently no criteria that would set a final definition for the element of gravity for the ICC.” She also went on to point out that the prosecutor’s office had made their previous decision despite the presence of some evidence suggesting that the Israeli soldiers had committed war crimes during the raid.
The ICC was created to investigate and, when necessary, put to trial senior leaders of the international community who have been suspected of committing serious crimes, such as genocide, war crimes, crimes against humanity, and the crime of aggression. Since its founding, the ICC has been criticized for internal conflict and grid-locking. For example, ICC appeal judges publicly criticized Bensouda’s past decision on the 2010 raid and the knowledge on which she based her judgement. Dr. Schwobel-Patel, associate professor at Warwick Law School, told the National, “This squabbling [between ICC organs] does not only look bad for a court losing legitimacy because of its alleged anti-African bias and inability to see cases through the system in a timely and fair manner. More importantly, this is problematic for the victims of the situations. Their hopes rise and fall with this back and forth too.”
Comoros, the Indian Ocean island nation of which the Mavi Marmara was registered, is a member of the ICC. Israel, on the other hand, is not. However, Israel’s citizens can still be charged if Bensouda opens an investigation.
While the deaths in itself are tragic and require answerability from Israel, the 2010 raid is tied deeply to the humanitarian crisis occurring in the Gaza Strip. At the time of the raid, the blockade had been in effect for three years and was introduced as an Israeli attempt to put pressure on Hamas in the region. Naval blockades are considered legal by the United Nations as an act of war. However, as Israel’s involvement in the Gaza Strip is seen as a belligerent occupation, the legitimacy of the blockade is shaky. Additionally, the raid occurred 40 miles off the coast, which is outside of a traditional blockade boundaries.
Tensions between Turkey and Israel ran hot following the storming of the flotilla, but they have since regained normal relations. Israel later apologized over the 2010 event, gave permission to Turkey to deliver aid to the Gaza strip via Israeli ports, and offered a $20m payout to the families of those killed during the storming. In exchange, Turkey agreed to prevent fundraising or military action by Hamas operatives based in Turkey.
While the tensions have cooled between Turkey and Israel, Israel’s treatment of Palestinian zones and outside assistance to these areas require international attention. Human rights are being violated. The people of the Gaza Strip have restricted access to water, electricity, medical care and economic opportunities. According to the Palestinian Central Bureau of Statistics, 80 percent of Gaza’s residents depend on humanitarian aid.
Moving forward, leaders need to come to the table to discuss peaceful, deescalating measures that has everyday citizens’ well-being at heart. It is everyday people that ultimately face the consequences of political and military aggressions. Organizations like the UN High Commissioner for Human Rights and the United Nations Relief and Work Agency need to continue to work in the area to maintain accountability as well as meet the needs of the people when governments are insufficient or withholding. Additionally, the ICC needs to respond to grave crimes when they occur, such as the 2010 storming, with mediated intensity to preserve answerability.
Prosecutor Bensouda has until December 2, 2019 to decide whether she will reopen the case. Three of the five ICC appeal judges have supported reopening. If she chooses to make Israel face charges, it would go against the ICC precedent of avoiding opposing strong states. Perhaps, however, that is exactly what the ICC needs to do.
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