The Mavi Marmara ship left Turkey for Gaza in May 2010 despite the blockade imposed by Israel. Shayetet 13 naval commandos who stormed the ship outside Israel’s territorial water faced violent resistance, which ended with the death of nine of the Marmara passengers.
Three years later, in May 2013, the Union of the Comoros asked the ICC to launch an investigation into the incident. Prosecutor Bensouda held a preliminary examination, and decided about 18 months later not to initiate an investigation. She stated in her decision that “there is a reasonable basis to believe that war crimes were committed by some members of the Israel Defense Forces,” but ruled that the incident was "not of sufficient gravity.”
The Unions of the Comoros, which was likely operated by Palestinian organizations, had trouble accepting this conclusion and appealed the decision. A Pre-Trial Chamber of the ICC accepted the request and asked the prosecutor to reconsider her decision, determining that she had made errors in her assessment of the gravity of the incident.
Upon renewing her examination, Bensouda was flooded with some 5,000 pages of additional material, including testimonies from more than 300 Marmara passengers and autopsy reports prepared by the Turks. The Israeli team, led by Attorney General Avichai Mandelblit (who served as the military advocate general at the time of the first examination) and his senior advisor, attorney Gil Limon, presented strong arguments. The main argument was that Israel had already investigated the matter and conducted all the required examinations, and so there was no room for another investigation.
In late November, Bensouda issued a statement in which she reaffirmed her initial decision not to open an investigation and rejected the criticism. She wrote that some of the people who had asked to become part of the proceeding as victims appeared to have received help in wording their testimonies, and not just in filling out forms. For example, she said, 206 victims used identical or similar terms to describe the people responsible for what happened on the Mavi Marmara, 60 victims used expressions which repeated themselves in an unlikely manner and 24 forms included no witness signature or identification mark, but only the stamp of a law firm that had represented the Union of the Comoros in the past in legal proceedings in the ICC.
Bensouda rejected other testimonies on the basis of some of the witnesses’ involvement in the acts of violence on board the Mavi Marmara and said others had provided testimonies on things they couldn’t have possibly witnessed first-hand.
On the legal aspect, the prosecutor found there was no room for the Pre-Trial Chamber’s interference in her decision, claiming the judges sought to challenge her discretion rather than just examine if her considerations were reasonable.
Bensouda rejected the judges' analysis on how to examine the gravity of the IDF soldiers’ conduct on the ship. She believes the judges ignored the overall picture and that there was no room to determine that the flotilla activists were “tortured,” but only that they suffered an attack on their “personal dignity,” which is why there was no room for an investigation.
Bensouda further determined that the judges failed to properly address the context in which the IDF soldiers committed the alleged “crimes” and the violence resistance they encountered on the ship. She said the judges’ disregard of the activists’ resistance was particularly surprising in light of the fact that they determined that the IDF soldiers had used force which wasn’t necessarily required. According to the prosecutor, even if live ammunition was used before the takeover, that doesn’t necessarily point to the existence of a policy or plan to carry out crimes.
Israel’s most significant achievement, however, is convincing the prosecutor that it had investigated all aspects of the incident properly and thoroughly— both in the army and in through the Turkel Commission—and drawn conclusions in a way that would make any additional investigation redundant.
Israel, like the United States, is not a member of the ICC in The Hague for old political reasons. Nevertheless, hundreds of complaints have been filed against Israel so far, mainly by Palestinian organizations. The decision rejecting the demand to launch an investigation into the Marmara incident was distributed by the court in Hebrew, Arabic and Turkish, so that all relevant parties would be able to read it in their mother tongue.