Today, the ICC decided that though Israel is “most likely guilty of war crimes” in their attack on an unarmed aid convoy in 2010, the International Criminal Court refuses to move forward.
An examination of the ICC and its new Chief Prosecutor Fatou Bensouda brings another point to light. The ICC itself continues to be fully complicit in the crimes it was set up to prevent.
In a move, outlandish, outrageous and certainly a precedent for disenfranchisement for the International Criminal Court, the ICC has decided not to prosecute Israel.
This time it is for the execution of 9 journalists and activists on the Mavi Marmara, part of the Gaza Flotilla carrying medical supplies to that encircled bastion.
It isn’t that the ICC doesn’t recognize this as a war crime, in fact quite the opposite. The ICC was very clear, there was no question of Israel’s guilt in an action that was not only a war crime but violation of maritime rules as well, an act of piracy only a few miles away from the same area where Israel attacked the USS Liberty, killing or wounding 201 American naval personnel in 1967.
From CNN: The International Criminal Court will not prosecute Israel for a May 2010 raid on a Gaza-bound aid ship that left eight Turks and an American dead, even though there’s reason to believe war crimes were committed, a prosecutor with the Netherlands-based court said Thursday.
While conceding that war crimes may have been committed in the botched raid, the potential cases “would not be of ‘sufficient gravity’ to justify further action by the ICC,” prosecutor Fatou Bensouda said.
“In the final analysis, I have, therefore, concluded that the legal requirements under the Rome Statute to open an investigation have not been met and I am announcing that the preliminary examination has been closed,” Bensouda said.
ICC Chief Prosecutor Fatou Bensouda, the Gambian born and Nigerian trained wife of a Moroccan businessman with strong ties to both Israel and the United States, has never considered a case outside of Africa.
Professor Kevin Jon Heller at the University of London cites Bensouda’s history of inaction.
From an article in the Toronto Star, dated October 13, 2014:
“That there is no formal investigation outside Africa is ‘absolutely unconscionable,’ says Kevin Jon Heller, professor of criminal law at the University of London’s school of Oriental and African studies.
‘It makes no legal sense, it makes even less political sense,’ he says. ‘That I think you could put squarely at the feet of Fatou Bensouda because she’s had three years to investigate in Colombia, or Afghanistan or Georgia, or somewhere. The only situations worth investigating are not only in Africa.’”
The timing of Bensouda’s announcement is, in itself, curious. Israel has, over the past few months, engaged in a pattern of criminality at an unprecedented pace, even bombing United Nations facilities in Gaza, using precision guided munitions supplied by the United States.
Since the Gaza attacks, killing thousands including 570 children, Israel has seized religious shrines and engaged in an accelerated ethnic cleansing program in the occupied West Bank.
These acts are all war crimes according to the Geneva Conventions but seemingly invisible to Bensouda.
Bensouda, heavily criticized for her inaction, claims she has no jurisdiction other than in Africa and that the court can only take on cases when she has been directed by specific unnamed members of the UN Security Council.
In fact, no one has been able to ascertain a pattern or logic to any of her actions as she typically falls back on excuses, claiming the court is underfunded or subject to unspecified extralegal prohibitions placed on the court by groups she is unwilling to name.
Murder and Piracy
The case for prosecution over the Israeli attacks on the Freedom Flotilla in 2010 involves an almost limitless number of war crimes, many of which were filmed.
The unarmed flotilla was attacked in international waters, an act of piracy.
Journalists and activists were executed, some shot through the back of the head while being held down by IDF “commandos.”
American Marine, Ken O’Keefe, a peace activist among those on the Mavi Marmara, disarmed and captured 3 Israeli “commandos,” taking them prisoner and holding them until the ship was swarmed by up to 200 attackers.
Americans Among the War Criminals
Among them, nearly a third were dual US/Israeli citizens, engaged in acts inconsistent with both international and American prohibitions.
The following text, the oath of allegiance that binds all Americans, makes this issue clear.
“I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God.”
The oath fails to mention war crimes, genocide and ethnic cleansing specifically but it is not unreasonable to assume that it prohibitions of such acts on behalf of even the Israeli government are clear within its meaning.
The Attack, the Apology
Israel then took control of the convoy, taking the ships to Israel, where passengers, including O’Keefe, were interrogated and tortured.
The medical supplies onboard were stolen, later to show up in Africa, sold there by an Israeli owned firm located in Cameroon according to a former Pentagon official.
In May 2014, then Turkish Prime Minister Erdogan agreed to accept an apology from Israeli Prime Minister Netanyahu, who openly admitted the attack was an unjustified violation of international war.
Netanyahu admitted personally not only authorizing the attack but directing its planning and execution as well.
Bensouda, who never considered charges against Netanyahu, in actuality never investigated in any way.
No witnesses were interviewed, no investigators were involved, no documents were reviewed and no written accounts were taken into consideration.
In fact, that the ICC could come to a finding at all is unusual as there is no evidence that any required legal process was ever initiated.
Bensouda’s claim that the incident failed to meet criteria as a war crime based on “scale” is unsupported by language within the Rome Statute.
The attack on the flotilla was a major military operation with over 2000 Israeli military involved including units of the Israeli navy, the IDF and Israeli Air Force.
The ICC’s failure to act based on capricious interpretation of statute in the face of Netanyahu’s admission of guilt will likely have repercussions.
There is little question left that the ICC is ineffective and has systematically targeted African leaders with a history of anti-imperialist stances.
Fatou Bensouda, the first woman, the first Muslim to assume the post of Chief Prosecutor for the ICC, has through her inaction in the face of blatant disregard for law on the behalf of Israel, permanently stained her tenure representing an organization long in need of reform.
With tens of thousands facing potential war crimes charges, more than half Americans, elected officials, military or privatized military and intelligence corporations under contract, and conflicts spreading from the Ukraine to Cape Town to Islamabad and beyond, the promise of international justice continues to remain unrealistic.