Judges at the International Criminal Court (ICC) have restated that the court’s prosecutor, Fatou Bensouda should reconsider her previous decision not to investigate the Mavi Marmara case.
Global media accounts have stated that the ICC decision will force Bensouda to scrutinise the case in more detail, significantly increasing the possibility of opening a “full investigation” by the chief prosecutor, which could pave the way for the prosecution of Israelis connected to the raid on the Mavi Marmara.
In a relative development, Turkish media recently reported that Turkish-US citizen Furkan Dogan’s family have sued the former Israeli Prime Minister Ehud Barak in the Federal Court for the Central District of California, on the grounds that he is responsible for the civilian casualties, including Dogan's, by ordering a maritime raid on the Mavi Marmara.
The Mavi Marmara was a Comoros-flagged passenger ship owned by a Turkish NGO - the Humanitarian Relief Foundation (IHH) - and was one of the six civilian ships of the Gaza Freedom Flotilla. Ships were targeted by an Israeli military operation on May 31, 2010.
Israeli attack on the flotilla headed for Gaza, took place on the international waters of the Mediterranean Sea. Nine Turkish citizens were killed when Israeli commandos boarded the Mavi Marmara in a bungled raid and a 10th activist later died from wounds sustained during the raid.
The maritime raid drew widespread condemnation internationally and damaged Israel-Turkey relations. The governing Justice and Development Party (AK Party) demanded an official apology and compensation for the relatives of the Mavi Marmara victims.
IHH attorneys submitted an application to the ICC following the incident and demanded the court prosecute Israel’s raid on the Mavi Marmara and the Gaza flotilla.
Fatou Bensouda, chief prosecutor for the ICC, made a decision about the request on November 2014. She stated then that “the information available provides a reasonable basis to believe that war crimes under the jurisdiction of the International Criminal Court were committed on the Comorian-registered vessel, the Mavi Marmara, when Israeli Defence Forces intercepted the 'Gaza Freedom Flotilla."
“However, after carefully assessing all relevant considerations, I have concluded that the potential cases likely arising from an investigation into this incident would not be of ‘sufficient gravity’ to justify further action by the ICC,” she added.
With this decision, she declined to further pursue the case and rejected the Turkish attorneys’ application to the ICC.
Despite her decision, the Pre-Trial Chamber of the ICC decided on May 7 to hear the testimony of relatives and attorneys of the Mavi Marmara victims, after Turkish attorneys filed an appeal against the decision by Bensouda.
Furthermore, the ICC judges requested her to take up the case again in July, outlining that she committed “material errors in her determination of the gravity,” which plays a critical role in determining if Israeli actions constituted a crime.
Bensouda appealed the decision of the ICC, but it was refused by a 3-2 majority of the five-judge chamber on Oct. 6, on the grounds that her appeal is not acceptable according to the formal procedures of the court.
Turkish lawyers representing the Comoros islands, which is a member of the ICC, in their latest appeal argued that “the interests of justice and fairness, which are the core of the ICC’s mandate, strongly militate in favor of the prosecutor reconsidering her decision.”
Turkey itself could not demand the court investigate the Mavi Marmara incident because Turkey is not a member of the ICC, neither is Israel.
There have also been two international probes into the incident. The first inquiry was the UN Human Rights Council Fact Finding Mission (UNHRC) report which found that Israeli actions were “disproportionate” and “betrayed an unacceptable level of brutality," and displayed “willful killing."
United Nations Secretary-General Ban Ki-moon also undertook another investigation called the Palmer Report, which concluded that the Israeli actions on the Mavi Marmara were "excessive and unreasonable.”
The flotilla was set up by an international coalition called the Free Gaza Movement, which included the Turkish Foundation for Human Rights and Freedoms and the IHH. Its aim was to break Israel’s naval blockade of the Gaza Strip.
During the Israeli offensive on Gaza, at least 2,160 Palestinians were killed - mostly civilians, including dozens of children - and some 11,000 were injured, according to data from United Nations and Palestinian officials.
The UN said 67 Israeli soldiers and six Israeli civilians were also killed in the offensive.