Following a thorough legal and factual analysis of the information available, I have concluded that there is a reasonable basis to believe that war crimes under the jurisdiction of the International Criminal Court (“ICC” or the “Court”) were committed on one of the vessels, the Mavi Marmara, when Israeli Defense Forces intercepted the “Gaza Freedom Flotilla” on 31 May 2010. However, after carefully assessing all relevant considerations, I have concluded that the potential case(s) likely arising from an investigation into this incident would not be of “sufficient gravity” to justify further action by the ICC. The gravity requirement is an explicit legal criteria set by the Rome Statute.
Without in any way minimizing the impact of the alleged crimes on the victims and their families, I have to be guided by the Rome Statute, in accordance with which, the ICC shall prioritize war crimes committed on a large scale or pursuant to a plan or policy.
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.
My Office’s assessment of the situation referred by the Comoros was based on open and other reliable sources, which we subjected to our strict practice of independent, impartial and thorough analysis…
It seems as if the state of Israel has escaped unscathed again, where once again, after many many other times the state has been found to have committed War Crimes, yet the impunity goes on. This time as a technicality at the ICC.
The prosecutor wrote above, “The gravity requirement is an explicit legal criteria set by the Rome Statute.” And yet the the War Crimes Research Office at the Washington College of Law, American University found:
…the term “gravity” is not defined in the Rome Statute or any of the other governing documents of the ICC, the appropriate role of “gravity” in the ICC remains a matter of debate. Indeed, according to one commentator, “[o]ne of the most contentious issues to be considered before initiating an investigation or prosecution is the gravity of the crimes.”
Nevertheless they outlined the thinking of the originators of the Rome Statute. The ICC prosecutor is referring to Article 17, paragraph 1, sub paragraph d, states, “The case is not of sufficient gravity to justify further action by the Court.”
The Washington College report goes on to say:
The Chamber … observes that this gravity threshold is in addition to the drafters’ careful selection of the crimes included in articles 6 to 8 of the Statute, a selection based on gravity and directed at confining the material jurisdiction of the Court to the “most serious crimes of international concern.” Hence, the fact that a case addresses one of the most serious crimes for the international community as a whole is not sufficient for it to be admissible before the Court.
One wonders what will happen when other crimes by the state of Israel is brought before the ICC?
Will the “gravity threshold” be satisfied with a pattern of law breaking by the state of Israel over decades?