Upon ICC’s decision to close the investigation of Israel’s attack on Gaza Freedom Flotilla due to lack of gravity despite acknowleding that war crimes were commited on Mavi Marmara, the lawyers representing the Comoros and the victims appealed the decision with a petition entitled “Prosecution of War Criminal Israel.”

On 6th November 2014, ICC has issued a decision confirming that “Israel has committed war crimes.”regarding Mavi Marmara case, which the Comorros along with Greece and Cambodia had referred to ICC on May 31 2010.

The aforementioned ICC decision has quoted that “IDF (Israeli Defence Forces) soldiers have committed offences including deliberate murdering, wounding, mistreatment attacking human dignity amounting to war crimes in the context of interception and takeover of Mavi Marmara and other ships in the Gaza flotilla.”ICC Prosecutor’s Office has stated that “Israel has the status of occupier as it is effectively  controlling Gaza. All the passengers in Gaza Freedom Flotilla has the status of civilians protected under international law. IDF soldiers have attacked the ships with the knowledge that passengers were civilians.”The prosecutor’s decision has also noted that Israel’s arguments based on right to self defence is “not worthy of discussion” as “the autopsy reports of those who were killed during the attack found that they were killed with multiple close range shots at the head, feet and neck.” Despite aknowledging a reasonable basis to believe that war crimes were committed on the Mavi Marmara, the prosecutor concluded that the potential case was not of sufficient gravity to justify further action by the ICC.

The outstanding points of the aforementioned petition is as follows:

1. Mavi Marmara is not an isolated case independent from Palestine-Israel conflict and the blockade on Gaza.  The prosecutor considered the Mavi Marmara investigation not in conjunction with Palestine-Israel conflict but as an individual case of attack on a ship thus led to a mistake. The prosecutor has taken the case out of its political context and assessed the offences committed by IDF soldiers as summary offences. Despite Israel’s statement acknowleding that “they have attacked the activists on the freedom flotilla because it has viewed them as accomplices of Palestinian resistance, the prosecutor’s assesment of the case as an isolated situation independent from Palestine-Israel conflict has impeded a just decision to be taken regarding the case. Therefore the OTP should evaluate our appeal in the light of ICC’s recently obtained jurisdiction over Palestine-Israel conflict.

2. Meanwhile, despite acknowledging in the decision war crimes were committed on Mavi Marmara, ‘no probe’ decision about the investigation is in discrapency with the objectives and liabilities of ICC. Moreover, the number of casualties on board would have been greater were it not for the live-streaming from on board Mavi Marmara to the televisions worldwide which IDF soldiers noticed during the attack that left 56 passengers heavily wounded with the intention of murder. It is apparent in the assesments regarding the scale of the incident that had the attack not live-sreamed on the television channels the number of casualties might have been over 700.

3. The ‘no probe’ decision based on the gravity of the offence is a judiciary mistake. The appeal petition has quoted the legal arguments as to why this case cannot be dropped based on its lack of gravity and requested the investigation to continue.

4. OTP disregarded the public interest by failing to investigate the case in order to prevent similar cases occur again in the future. Had ICC opened an investigation into the Mavi Marmara case Israel would not have dared to launch its deadly operation that killed 2500 people most of which were civilians in June 2014 in Gaza strip.

5. ICC’s objective and aim is to establish justice. Its establishment was a hope for many victims waiting for justice. However, since its establishment ICC’s prosecution policy was constantly criticized.“A tribunal which prosecutes African leaders in the interest of the West yet fails to prosecute Western governments and states” voice out the critics. It is the first time an African State (The Comoros) filed a lawsuit against a Western state (Israel). The result of this referral is anxiously followed up in Africa.

6. The prosecutor has disregarded the aggravating evidence while assessing the scale, nature, form and the effect of the attack.  Despite the clear numbers and the testimonies of the witnesses submitted in the reports the prosetor has claimed that “the number of victims affected by the attack is uncertain.” The prosecutor has discriminated between other cases with regards to scale and number of affected people which are not defined in any manner.  On the other hand the prosecutor has initiated investigation into incidents which involved smaller number of or no casualties.

Due to the reasons detailed in the petition some of which are quoted here ICC needs to make a more detailed evaluation of the Mavi Marmara case. Hence our xx-page petition of objection, which provides all the edivence and legal justification regarding the incident that is confirmed to constitute a war crime, is submitted at the ICC.  

7. What is expected of ICC in the following period is to initiate the process for the procesution of those Israelis responsible for all the offences in this case which is a part of the greater Palestine Case and thus to give the decision that the conscious of humanity is waiting for in an effort to establish the justice. The power of law and justice should prevail the power of persecutors. Otherwise the jurisdiction will remain to be a spider net that catches the flies but fails restrain the hornets and ICC will lose its legitimacy in the public eye.

INFO AND STATUS OF ICC MAVI MARMARA CASE:

Referral date: 14 May 2013

Referring States: The Comorros, Greece, Cambodia

Offence : War Crimes

Decision Issue Date: 6 Nov 2014

Defendants:

1. ShimonPeres, Israeli President

2. Benjamin Netenyahu, Israeli President

3. Ehud Barak, Israel’s Ex-minister of Defence

4. Avigdor Lieberman, Israel’s Ex-minister of Foreign Affairs

5. Gabi Ashkenazi, Israel’s Ex-chief of Staff

6. Eliezer Alfred Marom, Israel’s Ex-chief of Naval Forces

7. Amos Yadlin, Israel’s Ex-chief of Intelligence

8. Tal Russo, Chief of Central Command during Mavi Marmara Attack

9. Other commanding and executing political, civil and military officers responsible