[Peace-discuss] ICC decision not to prosecute in flotilla raid: notes, key documents

Fri Nov 7 10:13:57 EST 2014

The ICC prosecutor has made a decision not to prosecute in the case of the
flotilla raid. The preliminary, open-source investigation mandated by
statute found that while war crimes may have been committed, the scale of
the crimes (that is, to be blunt, the number of people killed) was not
sufficient to meet the "gravity" standard for ICC prosecution of the Rome
Statute.

Analysis published by Just Security, which is pro-application of
international law and as far as I know doesn't have any apparent stake in
its non-application in this case, suggests that the decision not to
prosecute based on the gravity standard is consistent with previous ICC
precedent.

I think this is important because some people are saying that the court
reflected a pro-Israel bias in deciding not to prosecute.

I don't have any particular interest in defending the ICC, even from unjust
criticism; I don't personally like the ICC that much overall; in
particular, I think the prioritization of prosecution over peace implicit
in the Rome Statute is a fatal flaw. But I fear that the apparently false
claim that the ICC decision in this particular case was motivated by
pro-Israel bias could have a side effect of mis-educating people about the
ICC in a harmful way, suggesting that it is more susceptible to political
pressure from the big powers than it is (which, obviously, it is to a
significant degree.)

This could lead people to think, for example, that there is no point to
Palestine joining the Rome Statute because a prosecution of Israel will
never be allowed. I think that a more careful reading of this case suggests
that is not necessarily true. This case suggests that neither Israel nor
anyone else will be prosecuted by the ICC for a "small" crime in scale. But
it does not suggest that, for example, Israel could not be prosecuted for
its settlement policies in the West Bank or for anti-civilian collective
punishment actions related to the Gaza blockade or for large-scale war
crimes during future wars.

Also, it is worth noting that under the Rome Statute a preliminary,
open-source investigation of the case was mandated by statute following the
complaint, even if it was clear what the result would be. My guess is that
the Mavi Marmara lawyers knew what the result would be, and have seen this
as a media-political strategy all along: their goal has not been
necessarily to win a legal case, but to take advantage of every possible
venue to generate criticism of the Israeli government's actions in the raid
that will generate international press coverage. This seems like a
perfectly reasonable strategy to me. It's like asking for a CRS report.
It's some form of accountability.

Here are some key documents:

Breaking News: ICC Prosecutors Decline to Investigate “Freedom Flotilla”
Incident
http://justsecurity.org/17141/breaking-news-icc-prosecutors-decline-investigate-freedom-flotilla-incident/

ICC Analysis on the Flotilla Incident–Fair & Balanced?
http://justsecurity.org/17183/icc-analysis-flotilla-incident/

Statement of the Prosecutor of the International Criminal Court, Fatou
Bensouda, on concluding the preliminary examination of the situation
referred by the Union of Comoros: “Rome Statute legal requirements have not
been met”
http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/otp-statement-06-11-2014.aspx

Here is a bit of press:

Reuters: ICC says won't probe Israeli raid on Gaza-bound flotilla
International prosecutors believe Israeli soldiers may have committed war
crimes during the 2010 raid, but these offenses were not of sufficient
gravity to fall under the court's jurisdiction.
http://www.haaretz.com/news/diplomacy-defense/1.624955

International court will not prosecute Israel in aid flotilla case
http://www.latimes.com/world/middleeast/la-fg-israel-gaza-court-20141106-story.html

===

Robert Naiman
Policy Director
Just Foreign Policy
www.justforeignpolicy.org
naiman at justforeignpolicy.org
(202) 448-2898 x1
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