ICC to Judge on Prosecutor’s Appeal Against Investigation of Gaza Flotilla Incident

On May 31, 2010, Israeli Defence Forces (IDF) attacked a flotilla carrying activists, humanitarian aid and construction material for the blockaded Palestinians in Gaza. After nine years, as appeals and counter-appeals still continue at the International Criminal Court (ICC), a proper investigation into the circumstances of the murder of 10 activists is yet to be conducted.

On November 15, 2018, the Pre-trial Chamber I had ordered the reopening of the investigation into the murder of activists and confiscation of the fleet of humanitarian aid, based on an appeal made by the Comorian government. On May 3, the ICC Appeals Chamber decided to hear an appeal by the prosecutor against the pre-trial chamber’s decision. The decision is set to be made on September 2, further extending the possibility of an investigation.

Comoros has been pushing for an ICC intervention on the matter since the flotilla was led by MV Mavi Marmara, a Comorian-flagged ship. The attack on the aid fleet was among the most notorious attacks on humanitarian aid in recent history.

The Gaza Freedom Flotilla was a fleet of six ships that was carrying, along with around 590 activists, food, medicines, construction material, and other material to aid and assist the Palestinians in Gaza, who are under a blockade imposed by Israel. The flotilla was organized by the Free Gaza Movement and the IHH Humanitarian Relief Foundation. The Free Gaza Movement had earlier too made several attempts to break the Israeli blockade of Gaza, and the flotilla was its ninth and biggest attempt. This was despite the threat of the flotilla being treated as an act of aggression against Israel.

Shayetet 13, a unit of the Israeli Navy, boarded the flotilla while it was on international waters, and attacked the activists aboard the MV Mavi Marmara. This led to the death of nine activists on the ship, and an eventual death of a mortally wounded activist had gone into a coma. The attack injured over 54 others. Israel also took the rest of the activists as prisoners and rerouted them to the Israeli port of Ashdod, away from Gaza.

Those who died were Turkish, and so were most of those who were taken prisoners. The incident worsened the relationship between Israel and Turkey, leading to a heated diplomatic standoff between the two. After much international pressure, Israel released and deported those who were arrested, but it held on to all but two ships. Israel also eventually paid USD 20 million to the victims and their kin in 2016, as part of an easing of relations between Turkey and Israel.

But Comoros followed through with making Israel accountable. Even though Israel never signed the Rome Statute that is the basis of the ICC, Comoros is a state-party. It approached the court on May 14, 2013, which prompted a preliminary examination by the ICC Office of the Prosecutor, Fatou Bensouda. On November 6, 2014, Bensouda closed the preliminary examination, as she was of the view that the potential case would not have “sufficient gravity” to be taken up by the court, which only looks into acts of genocide, crimes against humanity, war crimes and crimes of aggression.

On July 16, 2015, the court granted Comoros its request of another look at the incident by the prosecutor, but Bensouda, on November 29, 2017, decided to hold on to her decision of dropping it. Comoros was granted yet another chance at an application through a judicial review on November 15, 2018, against which the prosecutor appealed. It is this appeal that will be heard on September 2.

Meanwhile, Gazans continue to be under the intense criminal blockade by Israel that began in 2007 and has cut them off from the rest of the world, making it impossible for them to access supplies and food. The small strip of coastal land, between Israel and Egypt, has also been under constant attack by Israeli forces. This has led to the death of over 3,000 Palestinians in Gaza, against 185 Israelis, mostly IDF personnel.